ENFORCEMENT

Office of the Intellectual Property Enforcement Coordinator
As USPTO leadership has underscored, 30 patent
quality is central to fulfilling the purpose of the U.S.
patent system, which as stated in the U.S. Constitution
is to “promote the Progress of Science and useful
Arts.” 31 High quality patents promote efficient
licensing, investment in research and development,
and future innovation. Patent owners and the public
benefit from having clear notice of the boundaries of
the issued patents.
USPTO’s Enhanced Patent Quality Initiative plays
a fundamental role in institutionalizing best practices
associated with patent quality at all stages of the
patent examination process. 32 The initiative, among
other advantages, raises Patent Examiners’ awareness
of available search tools, improves resources to identify
relevant prior art, identifies best practices to enhance
the clarity of prosecution records, and captures data
about the correctness and clarity of Patent Examiners’
work products that will facilitate future decisionmaking.
Quality examination practices at the outset is
key to building confidence in the patent system and
promoting innovation.
Supporting the development of high quality
patents also has the additional benefit of helping
to reduce issues that can lead to costly and often
needless litigation. There has been significant
attention focused during recent years on reportedly
abusive patent litigation tactics by way of certain
companies, commonly referred to as Patent Assertion
Entities (PAEs) or Non Practicing Entities (NPEs). It has
been reported that abusive litigation tactics can be
used to threaten companies to extract unwarranted
licensing fees or settlements based on patent claims
that may be deemed inapplicable or invalid if subject
to legal scrutiny. 33
Shortly prior to the issuance of this Strategic Plan,
the Federal Trade Commission issued a report—
“Patent Assertion Entity Activity: An FTC Study”—
examining non-public information and data covering
the period 2009-2014 from entities using the agency’s
authority under Section 6(b) of the FTC Act. 34 The FTC
report spotlights the business practices of PAEs, and
provides an enhancement of our understanding of
PAEs with additional empirical foundation for ongoing
policy discussions.
The U.S. patent system has undergone a number of
significant changes in recent years which have focused
on reducing abusive litigation tactics in the patent
space. These changes include U.S. Supreme Court
rulings affecting patent-eligible subject matter; the
implementation of new post-grant review procedures at
the USPTO established by the America Invents Act (AIA);
changes to the Federal Rules of Civil Procedure which
raised the pleading standards for patent cases; adoption
of local model rules to better manage patent litigation;
and U.S. Supreme Court rulings regarding the award of
attorneys’ fees. 35
The AIA represents the most significant legislative
change to the U.S. patent system since 1952, and
established a unique forum to potentially curb abusive
patent litigation. 36 The Patent Trial and Appeal Board
(PTAB), created under the AIA, reviews the patentability
of claims challenged by accused infringers in AIA
trial proceedings. By challenging the patentability of
patent claims being asserted by PAEs at the PTAB,
stakeholders can take affirmative steps to curb abusive
patent litigation practices. The USPTO continues to
engage with stakeholders on how to further develop the
PTAB rules and procedures to make it a more effective
and fair alternative to the costly and arduous litigation
procedures of traditional courts, and the PTAB is already
producing tangible results.
In addition, an amendment to the Federal Rules of
Civil Procedure (which went into effect in December
2015) has raised the pleading standards for patent cases.
As a result, plaintiffs will need to do more than simply
provide defendants notice of infringement claims. Parties
alleging patent infringement now need to adhere to the
requirements set forth in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009), which require a complaint to allege “sufficient
factual matter, accepted as true, to state a claim that is
plausible on its face” and “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged” (Iqbal, id. at 678).
New technologies continue to challenge the patent
system. Continued prospective analysis and stakeholder
collaboration on how emerging technologies may impact
the patent landscape is an important USPTO priority.
The USPTO implements a multi-prong approach for
addressing issues related to emerging technologies
including: (1) enhancing patent quality by delivering
expert technical training on emerging technologies to
patent examiners through its Patent Examiner Technical
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