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DEEPLINKS BLOG

The Return of the Patent Troll: 2015 in Review

December 30, 2015

As another year goes by without action from Congress, patent trolls have returned in record numbers. The first half of 2015 saw an unprecedented number of patents suits, with most of the growth fueled by patent trolls filing in the Eastern District of Texas. If there is any lesson from this year, it is that the patent troll problem is increasingly localized to one troll-friendly federal district. Any comprehensive patent reform effort will need to address this phenomenon.

The lack of action in Congress was 2015’s biggest disappointment. House and Senate committees both managed to pass reasonable bills aimed at reducing litigation abuse by patent trolls. Meanwhile, opponents of reform tried to muddy the waters by introducing a terrible bill that would make it even harder to challenge bad patents at the Patent Office. In the end, legislative reform efforts stalled over the summer and Congress did nothing. Lawmakers might return to the issue before the next election. With trolls running rampant, we need legislative reform now more than ever.

While we did not see blockbuster Supreme Court patent decisions like last year, there was some progress in the courts. Most importantly, the lower courts have applied the 2014 ruling in Alice v. CLS Bank (which held that abstract ideas do not become patentable simply because they are implemented on generic computers) to invalidate a significant number of abstract software patents. The outlier, of course, is the Eastern District of Texas which is granting motions based on Alice at much lower rates than other courts. This has created an even greater incentive for trolls to flock to that district.

Of the many cases where we participated as amicus curiae, two important Federal Circuit cases stand out. In Williamson v. Citrix, the Federal Circuit overruled some ill-advised case law that has been one of the primary drivers of overbroad software patents. Under the new rule, when patent owners claim functionally (i.e. claiming what a invention does, rather than how it does it) there will be more limits on the scope of their patent. In ClearCorrect v. ITC, the Federal Circuit held that the International Trade Commission, an executive agency trade court, does not have the ability to block purely digital goods at the border. This was an important win for the open Internet.

At EFF, we had a big win in our challenge to the podcasting patent owned by a patent troll. The Patent Trial and Appeal Board agreed to throw out all of the claims we challenged. That case is currently on appeal before the Federal Circuit with a decision likely next near. We also won a case against a patent owner who had sued a photo hobbyist for running an online photo competition. In that case, the troll abandoned its claims to avoid having the judge rule on whether its patent is valid.

We continued our Stupid Patent of the Month series highlighting the kinds of terrible software patents that get wielded by trolls. And we filed a number of comments with the Patent Office urging it to more diligently apply Alice and to stop issuing so many bad patents. Next year, we’ll be back fighting in the courts, before Congress, and at the Patent Office to bring fairness and sanity to the patent system. While we had some wins in 2015, patent trolls continue to run rampant and much more needs to be done.

This article is part of our Year In Review series; read other articles about the fight for digital rights in 2015. Like what you're reading? EFF is a member-supported nonprofit, powered by donations from individuals around the world. Join us today and defend free speech, privacy, and innovation.

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