House troll hearing - Forget the trolls, let’s talk reform

Yesterday, the House Subcommittee on Courts, the Internet and Intellectual Property held a patent oversight hearing, dubbed “Patent Trolls: Fact or Fiction.” Perhaps not surprisingly, the Subcommittee essentially ignored the “fact or fiction” question and focused its efforts on patent reform in the broader sense, including considerable attention to the recent Supreme Court decision in eBay v. MercExchange.

The hearing revealed the true divisive nature of the eBay decision. Ranking member Berman, long a proponent of injunctive relief reform, flatly stated that eBay brings a “return to the standard originally intended” and that “it is not necessary to further legislate on the issue of injunctions.” If it wasn’t clear before yesterday’s hearing, it certainly is now - Representative Berman believes the Supreme Court got it right in eBay and that the law of injunctive relief is now in good order. It is safe to assume that he believes injunctive relief reform is officially off the table.

Rep. Berman clearly believes the Supreme Court got it right and that further injunctive relief reform is not neededDean Kamen, professional inventor and self-professed patent troll, views eBay a bit differently, though. Indeed, it’s fairly clear that he believes Congress should accept the challenge and pick up the Supreme Court’s eBay gauntlet. Mr. Kamen is in the business of inventing and makes his living by licensing inventions to big companies that, he believes, are better able to produce, deliver and support the products. The eBay decision clearly changes his business environment. He summarized his post-eBay world quite succinctly: “I can’t do business with big companies if the injunction provision includes a ’sometimes’ modifier.”

Patent reform, in Mr. Kamen’s eyes, now includes a legislative response to the eBay decision. He shrewdly suggested that he might be willing “to accept a higher standard for patentability in exchange for the certainty I had in the past” (referring to a tightening of the nonobviousness standard balanced against a strengthening of the injunctive relief provision post-eBay).

Mr. Kamen may be signaling the post-eBay shift of patent reform efforts predicted here earlier - the losing side in eBay might be beginning to focus its legislative resources on changing the law of injunctive relief as it stands after eBay. It’s very interesting to see the gauntlet used as a bargaining chip.

So what does ‘patent reform” mean in Congress now? It’s perhaps as muddied as it’s ever been. A response to eBay may be involved, but it’s still not clear if any Subcommittee member is willing to pick up the eBay gauntlet. Changing the obviousness standard might be involved. We may learn more about this in a proposed oversight hearing that promises to bring us full circle by reviewing the catalytic reports underlying the reform movement, one of which recommends a tightening of the standard. Remember, though, the Supreme Court may steal the spotlight on this issue as well if it grants certiorari in the KSR v. Teleflex case.

What about the troll issue? The definition of the term ‘patent troll’ was given a bit of lip service in the hearing and everyone assured Mr. Kamen that they wouldn’t sign on to a definition that categorizes him as a troll, despite his reaffirmation of his famous “I am a patent troll” pledge and repeated assertions that he meets most of the proposed definitions. Are patent trolls “fact or fiction”? That question was completely ignored.

Several peripheral and very interesting issues were touched upon….more to come on these in future posts.