Author Archive: Dana Rao

A Victory in the House!

Posted by Dana Rao, Vice President of Intellectual Property and Litigation

Things can get done! The House acted in an overwhelmingly bipartisan fashion to pass the Innovation Act this morning, 325-91!  Members of Congress and their staffs spent months developing language to address a problem that is costing our economy billions of dollars. I am impressed and delighted with the ready recognition and sophisticated understanding of this problem by Members of Congress on both sides of the aisle, and all of us affected by this problem (and that is pretty much all of us) appreciate their energy and efforts in developing a set of comprehensive solutions to reform patent litigation abuses. Unfortunately, the patent trolls have made it too easy to demonstrate the real consequences of this abusive behavior. But, it has taken real work to come up with a fair and balanced solution that addresses the problem and also ensures that the patent system works to protect innovators small and large. In fact, the Innovation Act streamlines the litigation process to minimize the cost of litigation for both parties, which benefits the small patent holder plaintiff as well as the patent defendant. As I’ve said in previous blog posts, Adobe is grateful for Congressman Goodlatte’s leadership role in developing this legislation, and for the support of other key co-sponsors including Representatives Lofgren, Coble, DeFazio, Smith, Eshoo, Chaffetz, Bachus, Marino, Farenthold, and Holding.

With the White House signaling its support of the Innovation Act in a Statement of Administration Policy released earlier this week, the conversation turns to the Senate with a hearing scheduled for December 17th. I hope that the energizing debate in the House today drives a sense of urgency in the Senate to act in early 2014 to pass a bill of similar breadth and effectiveness as HR 3309. It is critical that fee shifting, along with a method of ensuring those fees are paid, are elements present in any patent reform legislation. As I have noted before, unless the patent trolls face some risk for filing meritless lawsuits, these suits will continue. And money that should have been spent on investing in hiring, developing new technologies, and moving America’s economy forward will instead be spent on lawyers and patent trolls. Let’s get an effective patent reform bill passed in the Senate, so we can go back to innovating and driving America’s economy forward.

Thank you again to everyone who has focused attention on fixing the patent system and upholding the status of the United States as one of the best places in the world to innovate.

One Giant Step Forward (on Patent Reform)

Posted by Dana Rao, Vice President of Intellectual Property and Litigation

Thanks to UStream, I and probably tens of other patent aficionados just finished watching an eight-hour “markup” in the House Judiciary Committee. (A markup is a working meeting of a Congressional Committee at which bills and amendments are offered and voted upon.)

For those of you who have never witnessed a markup, it’s a reaffirmation that our democracy does work. Members of Congress debate, deals are struck, and roll calls are taken (listening to the voice roll calls is amazingly hypnotic, by the way, I highly encourage giving it a try if you need a moment of clarity–“Ms. Chu? Ms. Chu votes ‘Aye’). And since I was invested in the outcome, even the introduction of mysterious “second degree amendments to amendments” was filled with drama.

I have been privileged to meet with members of Congress and their staffs to make the case for patent litigation reform, as I have mentioned in prior posts. What happened tonight was exceptional and inspirational. The House Judiciary Committee reported out the Innovation Act on a vote of 33-5 in a truly bipartisan fashion with 12 Democrats joining 21 Republicans.

Everyone recognized that patent trolls are a scourge on businesses small and large. The real debate was on what to do about it. In the end, Representative Hakeem Jeffries (D-NY), with strong support from Adobe’s hometown Representative Zoe Lofgren (D-CA), offered an amendment that made this remarkable bipartisan vote possible. The Jeffries amendment clarified under what circumstances judges should not shift attorney’s fees to the prevailing party, making clear that reasonable patent infringement lawsuits will not be impacted and that plaintiffs in economic hardship will be protected.

In a previous life, I was actually a Schedule C employee in the Clinton Justice Department. I believe in access to justice for all, and reject the universal application of “loser pays” with regard to attorney’s fees — i.e., the English system. I was heartened to see that many on both sides of the aisle tonight recognized that patent litigation is a very narrow and special case where balanced fee shifting is appropriate.  Fee shifting has been in the patent act for decades (in Section 285) and updating it to address the troll phenomena is just good legislative sense.

Many thanks to Chairman Goodlatte and the entire House Judiciary Committee for the invigorating debate today, and to the 33 members of the Committee who voted to report the Innovation Act to the House floor for an eventual vote. I look forward to more improvements in the Act as this process continues.

The Senate Steps Up (on Patent Reform)

Posted by Dana Rao, Vice President of Intellectual Property and Litigation

I wrote a couple weeks ago about the patent troll problem, and how we were seeing bipartisan action in the House of Representatives centered on the Innovation Act, Chairman Goodlatte’s comprehensive bill on patent reform.  I’m happy to report that we are seeing great momentum in the House, with a markup/committee vote taking place on the Act later today in the Judiciary Committee.  After the Judiciary markup, next stop for the Act is a vote of the full House, later this year or early 2014. For those Schoolhouse Rock fans out there, you know this is the first important step in a long process to have this bill become a law.

To that end, I’m pleased to report that the Senate has been just as active, and the work of a number of offices is now bearing fruit as introduced legislation.  Adobe supports the bills introduced by Senators Leahy (D-VT) and Lee (R-UT), as well as separate bills from Sens. Hatch (R-UT) and Cornyn (R-TX).

Each of these bills tackles different aspects of the troll problem.  The Leahy bill provides some important safeguards to ensure software developers like Adobe are able to limit the effects of abusive patent litigation filed against our customers.  Both the Hatch and Cornyn bills provide for fee shifting.  Allowing the prevailing party to collect fees will deter meritless patent lawsuits, as the plaintiffs will face a financial consequence if they lose.  The Hatch bill adds a critical element to the fee-shifting proposal by providing a discretionary bond that will ensure those shifted fees will actually get paid by someone.  The Hatch legislation also safeguards the rights of individual inventors and entrepreneurs by giving the court the option to impose the bond, and providing guidance to the court that certain entities (non-trolls, individual inventors, universities) should not be required to post bonds.

Taken together, these Senate bills amount to a comprehensive plan to address the troll problem.  They include critical measures on fee shifting, demand letters, customer stay, real party in interest, and many other positive elements.

We are thankful to Chairman Leahy and his staff for his commitment to solving the patent litigation abuse problem, and for moving legislation forward.  We are especially grateful to two hometown-hero Senators who have more than a thousand Adobe employees in their state—Senators Hatch and Lee.  Adobe looks forward to working with these three Senators, along with Senators Cornyn and Schumer, as the process moves forward.