‘Gulfs’ on Patent Revamp Legislation ‘Not Insurmountable,’ Sperling Says
"It would be irresponsible for us not to seize the common ground” on a patent revamp, said National Economic Council Director Gene Sperling. Speaking Wednesday at an event co-sponsored by CEA and New America Foundation’s Open Technology Institute, he said there are significant, bipartisan areas of consensus on how to revamp the patent system -- eliminating low-quality patents, reducing incentives for unjustified patent litigation and empowering end-users and victims of losses. And the topics of division -- fee shifting, when to stay a lawsuit or limit discovery, and the covered business method (CBM) program -- have areas for compromise. “The gulfs between the sides are not insurmountable,” he said.
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Skyrocketing “abusive” patent litigation is “disturbing” and economically “stifling,” Sperling said. Between the recently passed Innovation Act in the House and the corresponding Patent Transparency and Improvements Act under consideration in the Senate (CD Feb 12 p5), a patent revamp “can and should get done and there’s no reason it should not move with the appropriate speed,” he said.
The White House initially issued a series of executive actions and legislative proposals aimed at addressing abusive patent litigation in June (CD June 5 p12). Some of the recommendations were picked up in the Innovation Act from House Judiciary Committee Chairman Bob Goodlatte, R-Va., which passed the House in December. The bill was “not exactly what we would like but it’s progress,” Sperling said. For instance, the bill had originally included a provision to expand the CBM program -- one of the administration’s recommendations -- but Goodlatte excised the provision prior to the bill’s markup (CD Nov 20 p16). The Senate’s Patent Transparency and Improvements Act from Judiciary Committee Chairman Patrick Leahy, D-Vt., does not expand the CBM program, but in December hearings, Sen. Chuck Schumer, D-N.Y., pushed to add the provision through his Patent Quality Improvement Act (CD Feb 12 p5). Senate Judiciary Committee members have called for more hearings on the issue (CD Dec 18 p11).
The discussions on both sides of Capitol Hill “are complementary efforts,” Sperling said. “We think there are differences. But it’s clear there are common ground in their goals and a sweet spot in their compromise.” President Barack Obama pressed the issue during his State of the Union speech. That’s “not insignificant,” Sperling said. “There’s quite a competition in the policy staffs in the White House about what gets in the State of the Union."
Sperling dismissed some main hurdles to passing comprehensive legislation. Regarding fee shifting: “There should be nothing to fear here” on either side of the aisle, he said. On when to stay a suit or limit discovery: “There’s no reason” that discussion between the two sides can’t create a compromise. And regarding CBM, perhaps the most debated provision: “There are strong views in this area” but “if the goal is to ensure patents in the system are only of the highest quality … we think a compromise is reachable.” It’s all about looking for “balance,” he said.
Sperling had strong words for those looking to debate any legislation to death: “We should not give much tolerance to those whose goal is simply to … delay the point when we have common sense legislation to end this stifling of innovation.”