The White House isn’t waiting for Congress to enact new intellectual property laws. President Obama has made good on his promise to go after so-called “patent trolls,” businesses that hoard legal ownership over inventions but don’t actually produce products. The latest series of executive orders is aimed at helping small businesses fight patent lawsuits, give expanded resources to the US Patent and Trademark Office, and help limit the scope of what can actually be patented.
Perhaps the most novel announcement today is a proposal to crowdsource the search for prior patents. As civil liberties organization the Electronic Frontier Foundation explains, “Right now, it is very difficult to find prior art — previous inventions and published ideas that cover a claim — especially for vaguely worded software patents.”
The patent office is understaffed, and there’s no good public utility to comb through all the ideas that may already have a patent. The White House’s newly formed crowdsourcing initiative is currently asking for proposals for how the public can organize previous patent claims in an easily searchable manner.
One such initiative already in place is “Ask Patents,” an open forum for people to ask questions about intellectual property and get (hopefully) expert answers.
Most of the other initiatives are about arming the public with knowledge and legal resources. A Santa Clara University study has found that nascent startups are especially susceptible to well-heeled patent trolls who take advantage of complicated laws to intimidate small businesses.
“Unsuspecting retailers, consumers, small businesses, and other users of products containing patented technology have increasingly found themselves targeted by letters alleging patent infringement and demanding money,” notes the White House statement. So the patent office is organizing a toolkit of information to help small businesses make sense of their legal options.
Additionally, it’s giving more training to patent examiners to spot “functional claims,” which assert intellectual ownership over the idea of an invention rather than its specific application of an idea. It’s hard to overstate how damaging functional claiming abuse can be.
Stanford Law’s Mark Lemly has argued the Wright Brother’s aggressively broad patent over flying technology prevented the emergence of the airline industry. “It was not until the government stepped in in 1917 and required the Wrights to license their patents that airplane innovation really took off,” he writes [PDF].
Ultimately, broad changes to patent law — and what types of ideas can be “owned” — is in Congress’s hands. But, at the very least, President Obama is making good on his promise to protect the startup community.