Regular readers know I am a fan of Last Week Tonight with John Oliver.  The show has done multiple segments relevant to our topics of discussion.  They recently did a segment on patent reform.

The guys over at Mintz Levin’s Global IP Matters Blog, suggest John Oliver’s information is outdated and that the proposed Innovation Act, H.R. 9, may not be the best solution writing:

Far from providing the solutions its proponents claim, that legislation would do little or nothing to limit the sending of bogus demand letters to unsophisticated targets in hopes of extracting nuisance value settlements – a practice that many decry as the most egregious example of patent abuse.  

Congress and the Supreme Court have taken steps to address some of problems with the patent litigation process and there has been some reduction in cases already.  We’ll monitor additional developments.

The State of Texas Gets in the Act

In typical Texas style, the Texas Legislature has decided it will take its own steps to protect Texas citizens.  SB 1457 passed the Texas Senate and is now being considered by the Texas House.  The bill allows the Texas Attorney General to recover fees from people who make “bad faith” patent claims to end users.

An end user means a “person that purchases, rents, leases, or otherwise obtains a product, service, or technology in the commercial market that is not for resale and that is, or later becomes, the subject of a patent infringement assertion due to the person’s use of the product, service, or technology.”

A communication is in a bad faith claim if it claims there is  an infringement and:

(1)  the communication falsely states that the sender has filed a lawsuit in connection with the claim;

(2)  the claim is objectively baseless because:

(A)  the sender or a person the sender represents does not have a current right to license the patent to or enforce the patent against the end user;

(B)  the patent has been held invalid or unenforceable in a final judgment or administrative decision; or

(C)  the infringing activity alleged in the communication occurred after the patent expired; or

(3)  the communication is likely to materially mislead a reasonable end user because the communication does not contain information sufficient to inform the end user of:

(A)  the identity of the person asserting the claim;

(B)  the patent that is alleged to have been infringed; and

(C)  at least one product, service, or technology obtained by the end user that is alleged to infringe the patent or the activity of the end user that is alleged to infringe the patent.

The remedy is expressly limited to the attorney general and does not create a private right. This proposal addresses the worst of the worst not apparently addressed by the federal proposal in the Innovation Act.