The White House released a fact sheet prepared by its Task Force on High-Tech Patent Issues aimed at protecting U.S. consumers and businesses from what it describes as "frivolous litigation" by Patent Assertion Entities ("PAEs") on June 4, 2013. The five executive actions and seven legislative recommendations outlined on the fact sheet require more transparency with respect to patent ownership and demand letters, tightening of standards at the Patent and Trademark Office, and providing legal protections for downstream consumers and businesses.
Three of these items address a need for reforms at the ITC. First, the Administration supports legislation that would require the ITC to apply the Supreme Court's decision in eBay Inc. v. MercExchange as the standard for issuing exclusion orders against products found to infringe valid patents. Application of this four factor standard for injunctions will provide greater consistency in the ITC's decisions, and it is a widely believed that these requirements will prevent PAEs from bringing suits at the ITC. Second, when an exclusion order is issued, the President wants to strengthen the enforcement process. To accomplish this, he has implemented an interagency review of enforcement procedures between the ITC and Customs. A request for public interest comments regarding Customs' enforcement of exclusion orders was recently published in the Federal Register. The comments are due on July 21, 2013. Lastly, the administration recommends legislation that would ensure that the ITC has the ability to hire judges qualified to decide highly technical issues.