Less than two years after Congress enacted a long-awaited overhaul of patent law, President Obama is pushing lawmakers to address more problems in the patent system. This time the target is "patent trolls," companies that exist solely to buy obscure patents and then collect money from manufacturers, retailers and even consumers for allegedly infringing them. The challenge is how to stop the trolls without leaving small inventors at the mercy of big manufacturers.
The U.S. patent system is almost as old as the republic. But the Patent and Trademark Office was ill-equipped for the digital revolution of the late 20th century, when patent applications skyrocketed - including those for software programs and "business methods," which some critics say should not be eligible for protection. Complaints multiplied too, as tech manufacturers in particular argued that patents were being used to stifle innovation, not to promote it.
Most of the complaints about the system stem from one central problem: The overworked patent office awards too many patents for "inventions" that aren't really novel, or whose claims cover far more ground than the invention itself does. To that end, Congress enacted the America Invents Act in 2011 to give patent examiners more resources and make it easier to challenge bad patents administratively. Meanwhile, several court rulings have raised the standard for winning a patent and made it harder to use patents to keep competing products off the market.
The new law offered little help, though, to those squaring off against patent trolls already armed with overly broad or dubious patents. For example, a company holding patents related to Wi-Fi routers has sued scores of coffee shops, retailers and hotels that have Wi-Fi hot spots, That's abusive, and Congress should make sure that businesses and consumers don't get sucked into fights between patent holders and manufacturers that incorporate disputed technologies into their products. If using a product as designed infringes a patent, the liability should rest with the manufacturer that put it on the market, not the consumer.