President Barack Obama plunged into the debate over so-called patent trolls on Tuesday, introducing a package of legislative and executive proposals aimed at curbing frivolous lawsuits. Here, attorneys tell Law360 if the proposals will have any effect on nonpracticing entities.
"Most of the efforts will have little effect on the extent of NPE litigation, except perhaps as to the most egregious cases. The one substantive change that is intriguing is the proposed restriction on functional claiming. If the PTO actually had the mandate, and resources, to reject applicants' attempt to use broad generic language when the disclosure only provides for a specific improvement over the art, much of the flood of low-quality patents would end and it would restore the quid pro quo balance the patent system was meant to have. It's not clear that an executive order, without funding and legislative change, can accomplish this, however." -- Brian Ferrall
"The administration's proposal that would have the most impact is the requirement that the ITC satisfy a more stringent test, a la eBay v. MercExchange, before granting an injunction. After eBay, and even more so after passage of the America Invents Act, which grants separate trials to defendants, patent assertion entities have flocked to the ITC, where they can more readily secure an injunction. The administration's proposal would bring the ITC in line with district courts. It remains to be seen whether our hopelessly gridlocked Congress can actually pass the proposed legislation." -- Ashok Ramani
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