[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]





 
                             PATENT REFORM:
                 PROTECTING AMERICAN INNOVATORS AND JOB
                CREATORS FROM ABUSIVE PATENT LITIGATION

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 25, 2015

                               __________

                           Serial No. 114-17

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
 
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
        
                                  ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 DARRELL E. ISSA, California, Chairman

                  DOUG COLLINS, Georgia, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
Wisconsin                            JUDY CHU, California
LAMAR S. SMITH, Texas                TED DEUTCH, Florida
STEVE CHABOT, Ohio                   KAREN BASS, California
J. RANDY FORBES, Virginia            CEDRIC RICHMOND, Louisiana
TRENT FRANKS, Arizona                SUZAN DelBENE, Washington
JIM JORDAN, Ohio                     HAKEEM JEFFRIES, New York
TED POE, Texas                       DAVID N. CICILLINE, Rhode Island
JASON CHAFFETZ, Utah                 SCOTT PETERS, California
TOM MARINO, Pennsylvania             ZOE LOFGREN, California
BLAKE FARENTHOLD, Texas              STEVE COHEN, Tennessee
RON DeSANTIS, Florida                HENRY C. ``HANK'' JOHNSON, Jr.,
MIMI WALTERS, California               Georgia

                       Joe Keeley, Chief Counsel

                    Heather Sawyer, Minority Counsel
                    
                    
                    
                    
                    
                               (II)
                    
                    
                    
                    
                   
                    
                    
                    
                            C O N T E N T S

                              ----------                              

                             MARCH 25, 2015

                                                                   Page

                           OPENING STATEMENTS

The Honorable Darrell E. Issa, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     7

                               WITNESSES

Mark Griffin, General Counsel, Overstock.com, Inc.
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Kathryn G. Underwood, President and CEO, Ledyard National Bank, 
  Norwich, VT
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19
Todd Moore, Founder and CEO, TMSoft LLC.
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Bryan Pate, Co-Founder and CEO, ElliptiGO, Inc.
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     5

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    64
Response to Questions for the Record from Kathryn G. Underwood, 
  President and CEO, Ledyard National Bank, Norwich, VT..........    66
Prepared Statement of the American Hotel & Lodging Association 
  (AHLA).........................................................    67
Letter from Steven K. Berry, President & CEO, Competitive 
  Carriers Association (CCA).....................................    69
Letter from JUlie P. Samuels, Executive Director, Engine.........    71
Prepared Statement of the Financial Services Coalition...........    78


  PATENT REFORM: PROTECTING AMERICAN INNOVATORS AND JOB CREATORS FROM 
                       ABUSIVE PATENT LITIGATION

                              ----------                              


                       WEDNESDAY, MARCH 25, 2015

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10:04 a.m., in 
room 2141, Rayburn Office Building, the Honorable Darrell E. 
Issa (Chairman of the Subcommittee) presiding.
    Present: Representatives Issa, Goodlatte, Smith, Jordan, 
Poe, Marino, Farenthold, Collins, DeSantis, Nadler, Conyers, 
Lofgren, Johnson, Chu, Deutch, DelBene, Jeffries, and Peters.
    Staff present: (Majority) Vishal Amin, Senior Counsel; Eric 
Bagwell, Clerk; and (Minority) Jason Everett, Counsel.
    Mr. Issa. Good morning. The Subcommittee on Courts, 
Intellectual Property, and the Internet will come to order. 
Without objection, the Chair is authorized to declare recesses 
of the Subcommittee at any time.
    As a point of interest, at exactly 11:00, the Subcommittee 
will recess for a Joint Session of Congress. I ask the audience 
to be aware that this is a rule of the house and not negotiable 
for us. Many Members will leave prior to that in order to get 
seated prior to the start.
    Today we welcome everyone to a hearing on ``Patent Reform: 
Protecting American Innovators and Job Creators From Abusive 
Patent Litigation.'' In 2011, the America Invents Act became 
the most substantial reform in U.S. patent law since 1836. The 
AIA reestablished the U.S. patent system on a global standard. 
I was proud to be part of that effort, and I am proud to be 
here today to continue our work to uphold the comprehensiveness 
and competitiveness of the American patent system.
    Our work, however, is not finished. I am convinced that 
Congress must do its part to stop patent litigation abuse from 
occurring. We stand ready to work with any and all stakeholders 
that are interested in helping us improve the patent system. 
Last Congress, the Innovation Act passed this Committee by a 33 
to 5 margin, and went on to pass out of the House on a 
bipartisan basis with 325 votes. Today I am confident that H.R. 
9, the ``Innovation Act,'' will become the law and build on the 
work of the AIA to protect the American patent system. But 
before it does that, we want to take one more round of 
opportunity to hear from stakeholders both publicly and 
privately to see if, in fact, in every way possible we have 
addressed the maximum benefit with minimum disruption of 
existing systems that are working.
    As anyone who has worked in patent litigation either as a 
plaintiff or a defendant or has prosecuted patents themselves, 
they know that for every patent troll, there is an independent 
inventor who is inventing, but looks exactly like a troll. Our 
challenge in this legislation is to make sure that we change 
the behavior of trolls without overly changing the behavior of 
those whose business models and real innovation are working to 
help America today.
    Today we will learn more about the cost to our economy by 
those who engage in patent trolling here in America. This is 
the land of opportunity. It is the land of innovation. I have 
said often innovation is done by inventors everywhere, and 
sadly it is done by lawyers in our court system. It has become 
too easy for individuals seeking to exploit loopholes in the 
patent system, bullying inventors and small businesses with 
frivolous lawsuits that amount to litigation extortion.
    Our work here is designed to address fundamental flaws in 
the patent system, flaws that affect the system as a whole, 
flaws that, quite frankly, devalue existing patents and hurt 
innovators. Those who are trying to make it seem like we have 
written a clumsy bill for the most part have had their say and 
offered no solutions. It is important that if you come before 
this Committee, either here or in private sessions, that, in 
fact, you come with real plausible language. You can come to 
Republicans. You can come to Democrats. As a matter of fact, 
you can come to almost every person on the dais here today, and 
they want to hear your suggestions of how to make this better.
    My charge as the Subcommittee Chairman is, in fact, to work 
with my Ranking Member to make sure that we exceed the 325 
votes we had last year on the floor. I believe we can do that 
by carefully making minor changes and putting in report 
language that, in fact, will help define this bill in a way 
that overcomes some of the areas of concern. I look forward to 
doing that while, in fact, closing loopholes in our litigation 
system.
    The provisions of the Innovation Act will inject 
transparency, fairness, and effectiveness into the system. That 
is our goal. We want to work with good actors to make that 
happen. And I clearly am pleased to have a panel today that 
have real firsthand expertise. And with that, I recognize the 
Ranking Member for his opening statement. Three hundred and 
twenty-six or bust I am told. Thank you.
    Mr. Nadler. Thank you, Mr. Chairman. Today we will continue 
our discussion of how to address abusive patent litigation. I 
continue to believe that we must pass legislation that will 
address the scourge of patent trolls which continue to burden 
businesses across the country. Abusive patent litigation has 
become a problem not only for large corporations, but for small 
and mid-sized companies as well.
    Legitimate patent litigation is necessary, but too often 
litigation or the threat of litigation is used as a tool to 
extort settlements from defendants. Unfortunately, small and 
medium-sized businesses are especially burdened by these 
abuses.
    Many of the witnesses here today will explain that 
responding to demand letters and abusive litigation practices 
decreases the amount of time and resources they can spend on 
research and development. Most small and mid-sized businesses 
cannot afford in-house counsel and cannot afford to keep a 
high-priced attorney on retainer. They need to focus their 
limited resources on creating what is hopefully the next great 
innovative. That is what makes them so susceptible to vague, 
but threatening, demand letters and frivolous, but costly, 
litigation that prey on their fear of litigation and ignorance 
of the legal system.
    Abuses of the patent system can undermine confidence in the 
entire system. I am a co-sponsor of H.R. 9, the ``Innovation 
Act,'' because it is my hope that it will reduce and discourage 
abusive litigation. The key word is ``abusive.'' I respect that 
the vast majority of patent cases involve arguably valid 
claims, but we want to reduce the effects of harmful actions by 
bad actors. If there are situations where the patent system is 
being abused, we should do everything we can to correct that 
situation and make it better for all participants in the patent 
system.
    The Nation's economy depends on effective and enforceable 
patent rights. The amount of abusive litigation has continued 
to increase over the years and has now trickled down to small 
and mid-sized businesses. As we examine ways to address the 
problem, we must ensure that we limit unintended consequences 
and provide protection for the enforcement of patent claims 
brought in good faith.
    I have heard from many stakeholders and businesses who have 
given firsthand accounts of the burdens of abusive patent 
litigation. I look forward to hearing from today's witnesses 
about how patent trolls have harmed their businesses and 
stifled innovation. For example, I would like to hear how small 
businesses respond to demand letters and bogus lawsuits that 
are filed against them. What kind of pressure do they feel to 
settle rather than to fight the demands of patent trolls? I 
would also like to hear how small businesses will benefit from 
the proposed changes in the Innovation Act.
    I remain a vocal advocate for a strong patent system, and 
do not want a system that can be exploited by abusive tactics. 
As we will hear today, the patent troll problem is real and is 
having real consequences. Once we acknowledge that the problem 
is real, we must address it. We must find ways to discourage 
bad actors from filing case after case and gaining settlement 
after settlement.
    This hearing will provide some of the answers to the 
questions I hear about why we need legislation to deal with 
patent trolls. Patent trolls often take many businesses by 
surprise because usually they have had no communications with 
the plaintiffs prior to being served with the complaint. Surely 
we can all agree that the system as currently structured needs 
to be fixed. I look forward to working with colleagues on both 
sides of the aisle to continue to improve the legislation to 
ensure that it is fair to all parties and gets at the root 
problem of abusive patent litigation. And I hope the 
statements, stories, and explanations we will hear today will 
further our efforts to deal with abusive patent litigation.
    I thank the Chairman for holding this hearing. I look 
forward to hearing from the witnesses. And I yield back the 
balance of my time.
    Mr. Issa. I thank the gentleman. The Chair now recognizes 
the Chairman of the full Committee, Mr. Goodlatte, for his 
opening statement.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. Addressing 
abusive patent litigation, particularly the reforms set out in 
the Innovation Act, are critical to our Nation's future 
economic competitiveness. At today's hearing we will learn more 
about the toll that abusive patent litigation has taken on our 
economy. And I would like to put my statement into the record 
and use my time to play a short video showing the stories of 
folks that have faced this form of litigation abuse.
    [Video shown.]
    Mr. Goodlatte. Mr. Chairman, thank you very much. I 
apologize for the volume, and we will also make it available on 
our website.
    [The prepared statement of Mr. Goodlatte follows:]
    
    
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                               __________
    Mr. Issa. Thank you, Mr. Chairman. It was a powerful 
message. And with that, we go to the gentleman from Michigan, 
Mr. Conyers, for his opening statement.
    Mr. Conyers. Thank you, sir. I do not have a video, so I 
apologize to everybody in advance. If you heard----
    Mr. Issa. We can replay it.
    Mr. Conyers. No, do not replay it. [Laughter.]
    Thank you very much. A transcript might be better. One of 
the important issues that I think should be considered is 
legislative ways to stop abusive patent litigation because it 
affects small businesses, and startups, and innovators more 
profoundly than anybody else. And they rely, these small 
businesses, on patents. They rely on patents for strong 
intellectual property protections, and we must not weaken those 
rights.
    Our innovators, whether they create in their garage or 
basements or as a group in an incubation hub, recognize their 
patents and their ability to protect them through enforcement 
in the courts is critical in determining whether their 
businesses will succeed or fail. Indeed, some angel investors 
and venture capitalists require ideas to be patented before 
investment. And they may well be dissuaded from investing if 
there is a risk that a court will not uphold the validity of 
those patents or, at a minimum, that there will be substantial 
litigation costs entailed. And this means that fledgling 
entrepreneurs will never get off the ground and become a 
flourishing business employing many Americans, sometimes even 
thousands of Americans, such as Overstock, which is one of our 
witnesses today.
    Overly broad legislation could engender more, rather than 
less, litigation and weaken patent enforcement protections, 
thus discouraging investments in innovation. Instead, I think 
we should take a cautious approach and not push solutions such 
as H.R. 9, the so-called Innovation Act, that may end up doing 
more harm than good to our startup ecosystem. And one way to 
stop abusive patent litigations is to address the problem of 
the use of demand letters, so I want the witnesses, and I hope 
they will discuss how we can curb this demand letter problem as 
I see it.
    Patent litigation opportunists exploit the patent process 
and the patent litigation system. In particular, they attack 
patents of weak quality in order to obtain quick settlements, 
or to bleed the alleged infringers. Individual inventors and 
small businesses have to decide whether to risk incurring 
potentially overwhelming litigation costs or enter into a 
settlement which could make them liable to attack by other 
abusive patent litigants.
    So I look forward to our testimony from the witnesses, and 
yield back the balance of my time. Thank you.
    Mr. Issa. I thank the gentleman for his kind opening 
statement. We now have a distinguished panel before us. The 
witnesses' written statements will be entered in the record in 
their entirety, and so you may summarize within 5 minutes 
anything you would like to say. Before you, you have a set of 
red, yellow, and green lights. This is an early innovation. We 
all know that green means go, yellow means go faster, and I 
will not get into what red means.
    I would ask, though, that you stay within your 5 minutes as 
close as possible. I would also further announce that after we 
recess, we will reconvene promptly at 12 and take Members that 
are back as soon as they are at least two Members on the dais.
    Pursuant to the Committee rules, I would ask now that all 
four of you please rise to take the oath. Please raise your 
right hands.
    Do you swear or affirm that the testimony that you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    [A chorus of ayes.]
    Mr. Issa. Please be seated. Let the record reflect that all 
witnesses answered in the affirmative.
    It is now my pleasure to introduce our witnesses. Ms. 
Kathryn Underwood is president and CEO of Ledyard--thank you. 
Different opening statement. Okay.
    In the correct order, Mr. Mark Griffin is general counsel 
at Overstock.com. Ms. Kathryn Underwood is president and CEO of 
Ledyard National Bank. Mr. Todd Moore is founder and CEO of 
TMSoft LLC, an app manufacturer. And my constituent from Solana 
Beach, Mr. Bryan Pate, the CEO of ElliptiGO, Inc. And you will 
see here, I am sure as we go through here, Mr. Pate's very 
innovative sort of bicycle product, when seen is very 
memorable. And I would like to thank him for coming from 
California today so that we would have a panel that included 
some hometown favorites.
    So with that, I will go down the aisle. Mr. Griffin, 
please.

TESTIMONY OF MARK GRIFFIN, GENERAL COUNSEL, OVERSTOCK.COM, INC.

    Mr. Griffin. Thank you, Chairman Goodlatte, and Ranking 
Member Conyers, and Chairman Issa, and Ranking Member Nadler, 
and Members of the Judiciary Committee. Thank you for the 
opportunity to testify today on behalf of Overstock.com and 
United For Patent Reform about patent litigation abuses.
    Dr. Patrick Byrne, the founder of Overstock, recognized 
that the internet presented some unique opportunities for 
liquidating excess inventory, and in 1999 founded and launched 
Overstock.com for that purpose. And at launch we provided 
excess inventory to retail consumers at significant savings. 
Since then, since 1999, we have grown from just a handful of 
employees and suppliers and $1.8 million in revenue to today. 
We now have 1,500 employees, and over $1.5 billion in revenues, 
and 3,200 suppliers. The Overstock story exemplifies what is 
best in the American innovative spirit.
    We are a strong respecter of intellectual property. Let me 
be clear. We own patents ourselves, and we spend much of our 
annual budget in licensing intellectual property from 
inventors. Innovation and intellectual property are at the 
center of our business.
    We know innovation, and we also know what abuse is of 
innovation. It is patent trolls extorting money from productive 
and profitable businesses by suing on weak patent claims. 
Patent litigation defense is brutally expensive. The patent 
trolls know that these excessive defense costs will lead many 
of their victims to settle rather than fight. Despite the high 
cost of defense, however, at Overstock.com, we believe that 
feeding abusive trolls only attracts more trolls, so we follow 
a spend and defend strategy. We would rather pay real dollars 
and high defense costs than pay a single dime to a patent 
troll.
    Overstock has been sued 32 times for patent infringement, 
and we have spent approximately $11 million in our defense. 
Management and development teams have also spent countless 
hours supporting our litigation teams instead of spending time 
at their days jobs in creating innovation and more jobs. In our 
history, we have settled a few abusive cases, but in doing so 
we have been instructed that our fight strategy seems to be the 
better of the two strategies.
    While expensive, our fight strategy is a good investment. 
Coming to understand our history and policy, patent trolls have 
begun to realize that they need to simply dismiss their cases 
when they discover that we will fight instead of settle. They 
simply walk away. Last year when two of these trolls, Execwear 
and Eclipse, walked away from us empty handed and a bit 
bruised, our CEO, Patrick Byrne, said ``In abusive lawsuits, we 
spend our legal budget in defense, not on unjust settlements.''
    But many other retailers and others cannot afford to spend 
tens of millions of dollars to scare off trolls off their 
bridges. Moreover, a well-functioning patent system should not 
impose this kind of tax on innocent operating companies. 
Congress must intervene to restore balance. Overstock is proud 
to be a member of United for Patent Reform, which is a broad 
coalition of diverse American businesses which are pursuing 
comprehensive solutions to abusive patent litigation. They are 
businesses across many industries--realty, construction, auto 
manufacturers, Main Street, and Wall Street alike. We would all 
rather provide jobs and invest in innovation.
    Multifaceted reforms like the following will help us cure 
economic asymmetries that make patent trolls' extortionate 
approach profitable. First, it is critical to raise the 
pleading standards. Patent trolls should say what they are 
suing over. Many defendants do not know until they have spent 
hundreds of thousands of dollars to find out. Second, where 
possible, it is imperative that claims of infringement proceed 
first against the patent owner and a manufacturer before claims 
are allowed to proceed between the patent owner and the 
manufacturer's customers. Trolls often pick on users of 
products rather than the manufacturers understanding that they 
will not put up a vigorous defense, and they lack defense 
information to put up a vigorous defense.
    Third, trolls exploit the discovery process to drive up 
defense costs to force settlements. Requiring patentees to 
explain and judges to decide what a patent means at a markman 
hearing before much discovery gets underway would certainly 
drive early resolutions and avoid unnecessary costs. Fourth, 
making patent trolls responsible for the costs of their 
discovery requests that go beyond core documents will stop 
unreasonable discovery demands made solely for negotiation 
leverage.
    And finally, we need better cost shifting options. 
Defendants' fees to battle trolls in court range from $1 to $6 
million. Trolls do not face such cost risks. They often use 
contingency lawyers, and they often are set up to be precisely 
judgment proof. Where a suit is not reasonably justified, the 
defendant should be able to seek and be able to secure 
reasonable reimbursement of its reasonable defense costs. 
Legitimate patent holders should not fear this standard.
    One solution will not solve the problem. We need a 
multifaceted solution. Overstock appreciates the opportunity to 
come and testify, and I welcome your questions.
    [The prepared statement of Mr. Griffin follows:]
    
    
    
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                                   __________
    Mr. Issa. Thank you.
    Ms. Underwood?

 TESTIMONY OF KATHRYN G. UNDERWOOD, PRESIDENT AND CEO, LEDYARD 
                   NATIONAL BANK, NORWICH, VT

    Ms. Underwood. Chairman Issa, Ranking Member Nadler, and 
Members of the Subcommittee, my name is Kathy Underwood, and I 
am president and CEO of Ledyard National Bank in Norwich, 
Vermont. And I testify today on behalf of ICBA and the more 
than 6,000 community banks they represent, and I welcome the 
opportunity to share my bank's experience with an abusive 
patent troll and to discuss legislative solutions to the 
problem.
    Ledyard is a $400 million asset community bank with seven 
branches in New Hampshire and Vermont and just over 100 
employees. We are primarily a small business lender, though we 
are active in mortgage and consumer lending also. We are an 
integral part of our economic life in the communities we serve.
    In 2011, we received a letter from a patent troll's lawyer 
informing us that he filed a complaint against us in the 
District Court of Vermont. The complaint, which was 2 inches 
thick, asserted that our nine ATMs were infringing on his 
client's patent. However, the troll was willing to settle the 
litigation on ``exceptionally favorable terms'' if we responded 
within 2 weeks. This is a fairly typical demand letter. Similar 
letters have targeted hundreds and perhaps thousands of 
community banks.
    On its face, the claim was absurd. The patent covered a 
process of connecting an ATM to the internet. Ledyard's ATMs 
being older models connect to the bank via closed circuit 
telephone. Infringement was impossible. We informed the troll 
of this fact through our lawyer, but he was not interested. His 
sole interest was enticing a costly settlement from Ledyard and 
other community banks.
    Our lawyers advised us that defending ourselves in patent 
litigation could be very costly, in excess of a million 
dollars. We ultimately chose to settle for a significantly 
smaller amount. Settling was a painful decision that violated 
my basic sense of fairness. On the other hand, I had to 
consider the best interests of my shareholders, employees, 
customers, and the communities that we serve, and I felt it was 
my duty to view it as a simple economic decision.
    Litigation is risky and uncertain, and the costs in terms 
of dollars and staff time can run much higher than estimated. 
The settlement demand was a known cost. The risk could be 
monetized and quickly put behind, allowing us to get back to 
serving our customers. Sadly, this is exactly the calculation 
that the patent troll counted on us making. Vaguely-worded 
demand letters wreak havoc on small businesses where every 
dollar counts. And to put it plainly, patent trolls practice a 
legal form of extortion.
    Apart from the hard-dollar cost of litigation and 
settlement, the drain on our management's time, the opportunity 
costs are also significant. Unchecked, demand letters will 
deter banks like mine from using new technologies at all. The 
technologies that support customer access and keep us 
competitive with other banks--ATMs, online and mobile banking, 
remote check deposit just to name a few--have become common 
targets for demand letters. Community banks have to decide 
whether they are worth the risk, and if not, our customers 
lose.
    ICBA recommends that this Committee prioritize three 
solutions that will provide relief for community banks. First, 
demand letters. Demand letters often lack specific information 
about the patent, such as the owner and what exactly has been 
infringed. This Committee can ensure that demand letters 
contain greater detail. Enhanced transparency will help curb 
frivolous and abusive lawsuits. ICBA supports legislation that 
will provide that if a demand letter does not contain clear, 
detailed, and accurate information about the patent, any civil 
action brought later would be dismissed.
    Second, the covered business model, or CBM Program, should 
be made permanent. It has proven to be a successful, low-cost 
alternative to litigation of covered business method patents. 
In fact, there are several CBM proceedings currently underway 
that could benefit banks and credit unions of all sizes. The 
director of the PTO should have discretionary authority to 
waive the filing fee for the CBM Program, and this would ensure 
that institutions of all sizes have access to the program to 
invalidate dubious business method patents.
    Third, end users of technologies, such as community banks, 
should not be on the hook for the infringement claims of 
trolls. In our case, the vendor assured us that their contracts 
protected them from an infringement suit against us. Because 
the vendor develops the product and is best positioned to 
refute the infringement claims, Congress should ensure that 
vendors provide appropriate warranties and indemnification to 
protect the end users.
    Thank you, and I look forward to your questions.
    [The prepared statement of Ms. Underwood follows:]
    
    
    
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    Mr. Issa. Thank you.
    Mr. Moore?

           TESTIMONY OF TODD MOORE, FOUNDER AND CEO, 
                          TMSOFT LLC.

    Mr. Moore. Good morning. I am Todd Moore. I am a mobile app 
developer, and my small company is TMSoft. We published the 
White Noise app that is available for your smartphone and is 
helping millions of people sleep better at night. It is 
important to note that I am a named inventor on four patents, 
but I am here today to tell you my story of being attacked by a 
patent troll, and speak out about the critical importance of 
the Innovation Act and how it can help app developers like me 
and startup innovators nationwide.
    I founded my company in 2008 to create smartphone apps. I 
worked nights and weekends on different ideas while keeping a 
full-time job to pay the bills. Finally, my White Noise app 
gained traction and became the number one app on iTunes. It 
allowed me to quit my job, focus on my startup full time, and 
hire employees. I was living the entrepreneur's dream, but I 
never dreamed my biggest danger in my business would be a 
patent troll.
    In 2011, Lodsys sent me a demand letter claiming my app was 
infringing its patents. Lodsys is a patent monetization firm 
that does not make any products. The demand letter included 
White Noise screen shot showing a webpage inside the app with a 
button that linked to the internet, essentially a hyperlink. I 
assumed this was a mistake because hyperlinks are common 
technology. They are the building blocks of the web. Later I 
discovered numerous other app developers had received similar 
demand letters. Lodsys wanted us all to pay a licensing fee, or 
they would sue for patents infringement.
    In 2013, Lodsys did sue me and many other app developers. 
Although the lawsuit was clearly frivolous, I was forced to 
defend myself. Patent litigation usually costs millions. I did 
not have that sort of money, and the patent troll knew it. 
Lodsys was quick to offer me a way out. If I just wired $3,500 
to an overseas bank account and agreed not to speak publicly 
about it, they would dismiss the lawsuit.
    Most companies would take that deal, but companies that 
settle with patent trolls risk catching the attention of other 
patent trolls to make a quick buck. Thankfully, a non-profit 
group agreed to defend my company pro bono. Once Lodsys 
understood we had a free lawyer who would challenge the 
patent's validity and that we would never pay, it dropped the 
lawsuit. Trolls are not interested in asserting valid patents 
and obtaining fair royalties. They are interested in easy 
settlements and quick paydays that will fund their next set of 
lawsuits.
    Some may testify that weak patents, like the Lodsys patent, 
would not be approved by the PTO today, but we cannot wait 20 
years for thousands of weak patents to expire. Patent quality, 
however, is not the only issue. Frivolous litigation can be 
initiated by trolls that unjustly assert infringement when an 
activity is way outside the scope of the patent. Congress 
should encourage courts to crack down on this behavior.
    The patent troll business is low risk and high reward 
because patent trolls get free lawyers, and they hide their 
junk patents in shell companies. They are destroying small 
businesses while offering society absolutely no benefit. The 
problem is not with patent licensing, it is with patent abuse.
    I have license technology from many companies, and in 
return we get something useful that improves our own products. 
That is how legitimate companies use patents to build value. In 
contrast, with patent trolls you do not get useful technology. 
You get an agreement that they will not sue you. That is not 
how our patent system is supposed to work.
    Finally, I have heard claims that patent reform legislation 
will harm small inventors. This is nonsense. I risked my 
capital to build a business and intent great apps. I support 
reforms that promote legitimate patents, legitimate licensing, 
and legitimate enforcement. I am a small innovator, and what 
harms me is that litigation opportunists are exploiting the 
patent system. The only way to protect true inventors with real 
inventions is for Congress to reform the system so it works as 
intended.
    What patent trolls are doing to small businesses like mine 
is simply wrong. We need common sense reform, like the 
Innovation Act, that will force patent trolls to think twice 
about bringing baseless and frivolous lawsuits. The problem is 
serious, but it is also solvable. Please, shut down the patent 
troll racket and let small businesses like mine get back to 
innovating, creating jobs, and building great products that 
people love.
    Thank you.
    [The prepared statement of Mr. Moore follows:]
    
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                          __________
    Mr. Issa. Thank you.
    Mr. Pate?

  TESTIMONY OF BRYAN PATE, CO-FOUNDER AND CEO, ELLIPTIGO, INC.

    Mr. Pate. Thank you, Mr. Chairman, Mr. Nadler, and Members 
of the Subcommittee. It is an honor to be here today to share 
my views on protecting American innovators with you. I am an 
American innovator. I have spent the last 10 years of my life 
in a concerted effort to create and build a new industry here 
in America.
    ElliptiGO introduced the first elliptical bicycle to the 
world in 2010. A photo of our product is on the screen. We 
currently employ 15 people in our Solana Beach, California 
headquarters, and we have additional employees in Virginia, 
Illinois, and New York. Over the past 5 years, we have sold 
more than 10,000 ElliptiGO cycles, generated more than $20 
million in revenue, and in 2013 we were named the sixth most 
innovative fitness company in the world by Fast Company 
magazine.
    From the beginning, we knew that while our idea was novel, 
overseas manufacturers could easily copy it and destroy our 
market by flooding it with cheap, poor quality knockoffs. 
Indeed, there are a number of Chinese manufacturers who have 
already replicated our product and are currently advertising it 
for sale on Alibaba.com and other websites. Photos of them, 
their factories, and their listings on the screens. They area a 
real threat, and it is only a matter of time before these 
knockoffs will hit our shores. Once that happens, the only 
viable weapons we will have to stop them from destroying the 
market are our patents.
    As an entrepreneur, I am by definition a risk taker and an 
optimist. Few things scare me. Since learning of H.R. 9, I have 
spent a significant amount of time trying to understand how it 
could impact my business. I am here today because there are 
parts of the bill that scare me. I believe if the bill passes 
as written, it will have the unintended consequences of 
adversely impacting American innovators, while perversely 
protecting unscrupulous competitors.
    It appears that in an attempt to address one form of 
abusive patent litigation, H.R. 9 will create new ways for 
infringers to abuse the patent system. I will touch on each of 
my concerns briefly now in hopes of a fuller discussion with 
you.
    Customer stay. I agree that we should stay litigation 
against innocent end users of an infringing product. However, 
H.R. 9's stay provision is much broader than that. In fact, it 
should be called the ``manufacturer, trading company, supplier, 
seller, and end user stay,'' because it protects all of these 
actors equally, innocent or not.
    Shockingly, the very factories in China that are making 
exact replicas of our product today and anyone who profits from 
importing or selling these blatantly infringing copies of our 
patent and invention here in the U.S. are considered customers 
and could be protected. I say ``protected'' because in practice 
the stay provision permits the companies who profit from 
manufacturing and selling infringing products to shield 
themselves from ever being held accountable. This is the 
provision I fear the most for my business because it presents 
an enormous risk to companies like mine. I hope we get to 
explore it in more detail today. The bottom line is that if the 
stay provision was law in 2005, I would not have started 
ElliptiGO.
    Joinder. If the joinder provision was law in 2005, I likely 
would not have been able to start ElliptiGO. Small technology 
companies like ElliptiGO not only need founders, they also need 
investors, employees, and, in our case, a licensor to get off 
the ground. The joinder provision exposes all these individual 
to personal liability. That is right, personal liability, if 
the company they support loses a patent enforcement action and 
is unable to convince the judge that their position was 
justified. We could not have guaranteed anyone back in 2005 or 
in 2015 for that matter that this will not happen.
    Even if my co-founder and I were willing to take this risk, 
I know for certain that we would not have been able to secure 
our patent license, and it would have been incredibly difficult 
to find investors and employees willing to get involved. At the 
time, we were pitching these people, Brent worked out of his 
garage, and I worked in a storage shed. Our only non-human 
assets were a pending patent and some prototypes. If the folks 
we were pitching believed that they could end up losing their 
house because of a future patent litigation involving our 
company, there is no way our licensor would have licensed his 
patents to us, and it is very unlikely we would have found 
enough investors and employees to launch the company. It is one 
thing to lose $50,000 in an investment you have made on a 
small, promising company. It is another thing to lose your 
house because of that investment.
    Finally, the fee shifting provision and the heightened 
pleading standards add complexity to patent enforcement and 
raise the stakes of patent litigation, making patent 
enforcement more expensive and protracted. I believe this 
change disproportionately impacts small companies, and I hope 
we get to explore these sections as well.
    As written, H.R. 9 introduces several incalculable and 
entirely new risks to the startup ecosystem. I believe that the 
few people who are willing to take the risks of investing their 
money, skills, and ideas into a startup today will choose 
differently if H.R. 9 becomes law. American innovators cannot 
succeed without these people, so I strongly urge you to address 
these issues with H.R. 9 before moving it forward.
    Thank you for your consideration of these issues, and I 
look forward to discussing them further.
    [The prepared statement of Mr. Pate follows:]
    
    
    
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                             __________
    Mr. Issa. Thank you. Thank you all. I am going to recognize 
myself first, and there are a great many items there that do 
bear some looking at. Mr. Pate, I am going to use some of your 
examples and play off of it since apparently it is a 3-to-1, 
three like it, you have not yet come around to liking it. But 
we are going to get you here. You know, if you want someone's 
vote, first you have to get them on your bill, so there is a 
little of that.
    Scott, I want you to remember that this is close your 
district, too. He could have employees in your district.
    Voice. I am sure we do.
    Mr. Issa. Yes, listen hard. Mr. Griffin, the amazing thing 
about this is the provision that I am most concerned about, and 
I think, Ms. Underwood, it affects you, is, in fact, the idea 
that a stay on the customer is somehow preventing Mr. Pate from 
having effective litigation. Ms. Underwood, in your case if the 
manufacturer had weighted in your nine ATMs, could you give us 
a range on what this troll was willing to settle for for your 
products that were not connected to the internet in a patent 
that required it be connected to the internet?
    Ms. Underwood. The range of the settlement was in the mid-
four figure range to settle for those nine ATMs for which we 
were not violating the patent.
    Mr. Issa. So for me, mid-four figures is $50 grand?
    Ms. Underwood. No, in the $6 to $7,000.
    Mr. Issa. Oh, one more down.
    Ms. Underwood. Yes.
    Mr. Issa. So basically they wanted a nuisance amount that 
was probably less than you had already spent just having a 
conversation with your counsel and getting the advice of a 
patent attorney.
    Ms. Underwood. Exactly, and that was the decision we had to 
make at that time.
    Mr. Issa. Okay. And, you know, I was in business a long 
time, and Mr. Moore made a different decision for certain 
reasons. But it is not uncommon as long as they offer you a 
settlement cost that is less than your cost of calling your 
lawyer, you often end up doing it. Mr. Griffin, your company 
has chosen not do that, not to make these settlements by and 
large, but you deal with 3,200 manufacturers.
    Mr. Griffin. 3,200 manufacturers who manufacture probably 
over a million products that we offer, any component of which 
could be subject to patent infringements.
    Mr. Issa. And if there were a stay, knowing that ultimately 
if your manufacturer lost, did not defend the case properly, 
you would find yourself at a greater disadvantage, how would 
you handle that? Let us just assume that a manufacturer under 
the law, H.R. 9, if the manufacturer agreed to it and you were 
stayed, how would that affect your participation in the case 
and your willingness to just forget about it and let it go to 
the manufacturer? I just want to make sure we get the practical 
part of what really happens.
    Mr. Griffin. As a practical matter, we are usually willing 
to run the risk. It depends on the situation, but these stays 
have happened. Judges do stay cases where a manufacturer has 
agreed to the indemnification, has come in and defended fully 
the actions. And my understanding is that the legislation calls 
for that type of situation. Where there are two cases going on, 
why should we litigate both? Let the manufacturer that has the 
best defenses take it.
    Mr. Issa. Now, one quick follow-up because, Mr. Pate, I 
want to make sure that he has a fair chance to be involved in 
this, too. If the legislation required that the manufacturer 
have at least one additional customer, I mean, in other words, 
if you are the exclusive customer, you would not get a stay. 
Would that bother you in your situation if you are literally 
the only customer, the exclusive customer?
    Mr. Griffin. I do not think it would bother us all that 
much. Some relief is better than none, and we think that it is 
a good thing to have the manufacturer take the defense.
    Mr. Issa. Well, is it not true, to your understanding, 
that, in fact, in common law, these stays are already part of 
the process? The legislation is simply codifying what in the 
Southern District of California, San Diego, already is the 
practice?
    Mr. Griffin. Yes. Yes.
    Mr. Issa. So to your knowledge, do most places around the 
country grant these stays anyway, let us just say, with the 
possible exception of the Eastern District of Texas and 
Delaware?
    Mr. Griffin. With the possible exception of the Eastern 
District of Texas.
    Mr. Issa. Okay. Mr. Pate, I want to be fair to you, but I 
do want to mention to you that if you go before Judge Moskowitz 
in the Southern District, Barry is going to grant that stay in 
all likelihood because that is common law and it is commonly 
done in most parts of----
    Mr. Pate. That is great, and I am really glad we get to 
talk about this because there is a huge nuance here that I 
think is being missed. What everyone here on the panel has 
talked about is being an end user of a product that was the 
accused infringing product.
    Mr. Issa. Well, Overstock is a seller and distributor.
    Mr. Pate. But actually his testimony, sir, was about being 
an end user, and all the demand letters have been related to 
being an end user. For things that he sells, he typically has 
an indemnification agreement with the manufacturer, and I think 
that is what he was referring to at the end.
    The reality, though, is the end user that is getting these 
demand letters is very different from the Chinese manufacturer 
of knockoff goods in my mind. Those are two very different 
actors. If I buy these glasses and get a demand letter that 
says whoever made these glasses was infringing on a patent, 
that is a problem. If I make these glasses as an exact rip-off 
of Hugo Boss or whoever makes these glasses, and then Hugo Boss 
tries to sue that manufacturer, the Chinese manufacturer, and 
then that manufacturer is entitled to a stay of the lawsuit? 
That is where I think the problem is.
    Mr. Issa. So in a nutshell, you are okay if I am using a 
Wi-Fi or some other product as an end user being stayed.
    Mr. Pate. Yes.
    Mr. Issa. Okay.
    Mr. Pate. If you are the mom and pop coffee shop, yes. But 
what my challenge is, as you saw on the screen, there are 
factories in China with my product on their walls ready to come 
to the U.S. They are going to get imported. They are going to 
get distributed to a seller. The person I want to collect from 
is really everybody in the chain making profits, but in 
particular the seller.
    Mr. Issa. Okay. And I have got to go to the Ranking Member, 
and we are going to have a full discussion on this. Just one 
quick question. Have you been to the ITC, which is the venue 
that deals with overseas entities and can give you injunctive 
relief where, in fact, the courts cannot give you injunctive 
relief?
    Mr. Pate. Well, I believe the courts can give me injunctive 
relief.
    Mr. Issa. Rarely.
    Mr. Pate. That is part of the patent----
    Mr. Issa. Under eBay, you are not likely to get it. You 
will get reasonable royalties.
    Mr. Pate. That is an arguable point, sir. But the reality 
is an injunction is still a part of the monopoly provision of a 
patent, and the damages provision is attractive. And there are 
U.S. potential manufacturers----
    Mr. Issa. My time has expired. I just had one question if 
you could give me a yes or no.
    Mr. Pate. Sure.
    Mr. Issa. Have you explored the International Trade 
Commission, the ITC?
    Mr. Pate. I have looked into it. I have not gone----
    Mr. Issa. Okay. So you have not gone to the only court that 
effectively deals particularly with overseas companies that are 
offshore and outside the reach of Article 3 courts.
    Mr. Pate. That is correct.
    Mr. Issa. Okay, thank you. Mr. Nadler?
    Mr. Nadler. Thank you. Let me start by saying that in this 
whole area, I find myself in an unusual situation. I normally 
react rather negative to talk about abusive litigation and 
abusive lawsuits because I am normally in a situation where I 
believe that lack of access to Federal courts at variable costs 
to the little guy is the real problem, that the courts have 
shut off access, narrowed class actions, et cetera. But here in 
this field of patent trolls, I think the weight is on the other 
side, and so I talk about abusive litigation and dealing with 
it.
    But I am concerned about some of what Mr. Pate has said, 
and I want to continue on this end user business. Now, clearly 
the end user ought to be protected.
    Mr. Pate. Absolutely.
    Mr. Nadler. But you are saying that we cannot get at the 
guy in China, the Chinese manufacturer.
    Mr. Pate. I cannot get at anyone in the supply chain.
    Mr. Nadler. Why can you not get----
    Mr. Pate. They all are entitled to a stay.
    Mr. Nadler. You cannot jurisdiction in an Article 3 court 
against them?
    Mr. Pate. No. It is because the way the customer is defined 
in H.R. 9, it applies to anyone who can be subject to a patent 
infringement lawsuit.
    Mr. Nadler. Could you think of a way that we could define 
the customer in this bill?
    Mr. Pate. Yes, sir.
    Mr. Nadler. In this bill in a way that would do what we 
wanted to do----
    Mr. Pate. Yes, sir.
    Mr. Nadler [continuing]. And we protect the end user. I 
mean, the whole point really is if I make a new chip and I 
invent something in the new chip and I get patent on it, and 
that chip gets put into a bigger chip, which gets put into a 
device, which gets put into a different device, which gets put 
into a car or into a jukebox--jukebox, that shows my age--in 
the restaurant. [Laughter.]
    In the restaurant or in the iPhone, you should not sue the 
guy at the restaurant.
    Mr. Pate. Exactly.
    Mr. Nadler. Nor should you sue the guy who put in the car, 
nor this one, nor that one. You should sue the guy who 
infringed the patent in the chip. How can we do that without 
subjecting it to the problems that you are saying?
    Mr. Pate. I think the key is to focus on the end user. Who 
do we think of as a customer? I mean, when we say ``customer 
stay,'' we think of end user, and everybody here is an end user 
of a lot of things. And I believe all the demand letters that I 
have read----
    Mr. Nadler. If we said only the end user, what about the 
guy four steps down the chain who is not infringing on 
anybody's patent. He is putting an iPhone in the car, you know, 
let us say. And we are not talking about the guy who buys the 
car. We are talking about the guy who manufacturers the car. 
But the guy who infringed the patent was the guy who made the 
chip that was then put into a device that was put in an iPhone 
that was put in the car. Should we be able to sue the car 
manufacturer?
    Mr. Pate. I mean, that is a great question. I make 
bicycles, so my world is a lot simpler than that.
    Mr. Nadler. Well, one day you may want to put an iPhone on 
your bicycle.
    Mr. Pate. I may, but it seems to me the fundamental 
philosophy should be whoever is making a profit off of my 
invention should not be able to do so without a license from 
me.
    Mr. Nadler. But wait a minute. You are the end user. You 
are making a profit.
    Mr. Pate. No, no, no, the ElliptiGO. So we have 23 patents. 
We invented this bike.
    Mr. Nadler. No, no, but the mom and pop restaurant that has 
a modern iPhone or radio or whatever in the restaurant is 
making a profit off that. You do not want him sued?
    Mr. Pate. No. So maybe it is the profit on the sale of the 
item. If it is a mom and pop coffee shop using a Wi-Fi router 
and selling the router as part of their business----
    Mr. Nadler. All right, but let us assume it is the guy who 
made the router, but he is three steps down from the guy who 
infringed----
    Mr. Pate. Can we not cover that with indemnification? Can 
we not use the indemnification process to cover that? I mean, I 
have not thought deeply about it because I make bicycles and it 
is a different situation. We have Chinese knockoffs that are 
going to flood the retailers----
    Mr. Nadler. Let me ask Mr. Griffin what you would say to 
the same question.
    Mr. Griffin. We are an end user. The same question. I 
believe--I believe--that it is structured right in this 
legislation where there is a manufacturer in a lawsuit. We are 
talking about a separate situation where he cannot reach a 
manufacturer. That is different. I do not think that is covered 
by this bill. This is a situation that requires that there be a 
manufacturer in the lawsuit. In other words, some court has 
jurisdiction. Why not stay it against the sellers, against the 
end users, and all down the line? I do not think it goes as far 
as Mr. Pate believes it does.
    Mr. Nadler. Mr. Pate, if we were to put in some sort of an 
exemption or a carve out here for foreign manufacturers in 
terms of the stay because the courts do not have jurisdiction 
over them, do you think we could handle your problem that way?
    Mr. Pate. I think the challenge is for all the companies 
that could be knocked off by U.S.-based companies. The issue in 
my mind for tangible goods that are going to flow through the 
supply chain, I need to be able to enforce my patents here in 
the U.S. against a real company in the U.S. And the challenge 
when you deal with the Chinese companies is there are a lot of 
shell companies. So they can file a declaratory judgment action 
against me on the patent, create a lawsuit, and then the real 
party in interest actually gets to stay it. And there could be 
30 of those companies over in China that qualify under the 
language of H.R. 9.
    Mr. Nadler. Thank you very much. My time has expired, and 
we have to----
    Mr. Issa. For all Members, it is now 10:59 and 45 seconds.
    Mr. Nadler. Fifteen seconds to get to the chamber.
    Mr. Issa. I will gavel in about 15 seconds. So we will 
return promptly at 12:00, and I commend to all of you whatever 
you would call a lunch, it will be served right around the 
corner in the basement. Thank you.
    [Recess.]
    Mr. Issa. The Committee will come to order. It is now my 
pleasure to yield time to the Chairman of the full Committee, 
Mr. Goodlatte.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. I appreciate 
the hearing, and I appreciate the witnesses' testimony, and I 
have a question for all of them. First of all, a yes or no 
question. Do you believe that an inventive company that has 
patents, employees, builds a product, and sells it to consumers 
would be considered a shell company? We will start with you, 
Mr. Griffin.
    Mr. Griffin. No.
    Mr. Goodlatte. Ms. Underwood?
    Ms. Underwood. I would guess not.
    Mr. Goodlatte. Mr. Moore?
    Mr. Moore. No.
    Mr. Goodlatte. Mr. Pate?
    Mr. Pate. No.
    Mr. Goodlatte. Okay. The good news for you, Mr. Pate, is 
that as a result of that, your concerns about the joinder 
provisions in this bill should be eased considerably because 
unless you are a shell company, you are not going to be able to 
be concerned about that joinder provision.
    Mr. Pate. Can I respond to that?
    Mr. Goodlatte. Sure.
    Mr. Pate. Great. There are two elements about it. I think 
the joinder provision is particularly damaging to companies in 
their very early, early stages. So when we secured our very 
first license to a patent----
    Mr. Goodlatte. If you have got some parts in the garage 
that you are going to start assembling, you are not a shell 
company. If you have got an idea that you are working on 
yourself, you are not a shell company.
    Mr. Pate. Where is this shell company language if I can 
ask, because I do not recall that.
    Mr. Goodlatte. Well, the Innovation Act's fee shifting----
    Mr. Pate. Is it in fee shifting or joinder?
    Mr. Goodlatte. Both. The bill's joinder provisions only 
apply to a plaintiff who has no substantial interest in the 
subject matter at issue other than asserting such patent claim 
in litigation. So if you have anything beyond the interest in 
asserting a patent claim in litigation, you do not have a 
concern about the joinder provision.
    Mr. Pate. So what happens if my operating entity goes 
bankrupt, and 2 years later my holding company that has all my 
intellectual property seeks to enforce the patents?
    Mr. Goodlatte. You are still not a shell corporation 
because you have an interest in perfecting that product.
    Mr. Pate. What is my interest?
    Mr. Goodlatte. Your interest is in being remunerated for 
the idea that you have advanced and you have perfected.
    Mr. Pate. So even though my operating company no longer 
exists, I would still not fall under the joinder provision?
    Mr. Goodlatte. Well, you would fall under the joinder 
provision in those circumstances, but not an entity that is 
ongoing. And if you are simply an entity advancing something 
like that, then you have got to be able to stand behind your 
product. And then, bear in mind here is the other important 
part about this. As long as your claim, and basically what you 
are talking about is a claim based upon your patent that you 
obtained and you perfected. That claim is only going to be 
resulting in attorney's fees being awarded against you if your 
claim has no reasonable basis in law or in fact.
    So this is designed to help protect companies like yours, 
not harm them. And that is why lots of small businesses, 
including lots of app developers, lots of internet startup 
companies and so on, want this protection because the flip side 
of that is that if that shell company that you are trying to 
describe for me only acquired something from somewhere somehow 
and is trying to advance it in ways to garner funds that go way 
beyond what the validity of the patent is, and may, in fact, be 
why it is a company in bankruptcy because it does not have 
anything of significant value. That is a situation in which 
then you the developer of another that is being sued by an 
entity like that has the protections here.
    Mr. Pate. But I do not think the protections are that 
valuable to a company like mine, the fee shifting, because if I 
win a patent case, I am going to win big.
    Mr. Goodlatte. Yes, but you are going to be more likely to 
win if your opponent knows that they have no reasonable basis 
in law or fact for the defense that they are asserting against 
you, and, therefore, they are going to be subject to attorney's 
fees? And by the way, both joinder and attorney's fees, they 
exist in current law already, and all this bill does is provide 
greater certainty.
    And when you are talking about investors, and when you are 
talking about inventions, and you are talking about small 
businesses, the more certainty you can bring to the table, the 
better off your business is going to be. You have a much, much 
better ability to determine what the liabilities are and a much 
greater ability to assert a valid claim and not have to assert 
it as aggressively or as expensively because somebody is not 
going to hang around if they are going to have to pay not only 
their attorney's fees, but yours as well, because they have no 
reasonable basis in law or fact for the defense that they are 
asserting.
    Mr. Pate. I agree with that. I think certainty is a 
fantastic thing, and the more certainty we can get, the better. 
The challenge here is that patent litigation, in my opinion, by 
definition is very uncertain. What appears obvious to some 
people is novel to others.
    Mr. Goodlatte. We do not disagree with you. That is why we 
are doing this bill, and that is why this bill is called the 
Innovation Act, to bring greater certainty to patent 
litigation. That is the purpose of this legislation.
    Mr. Pate. But I think the certainty goes, in a way, against 
a legitimate company like mine----
    Mr. Goodlatte. I do not think so.
    Mr. Pate [continuing]. In enforcing for a patent.
    Mr. Goodlatte. I do not think so. For all the reasons I 
just cited, I think it creates greater certainty.
    Mr. Pate. And I think----
    Mr. Goodlatte. My time has expired, so I am going to yield 
back to the Chairman. But I would be delighted to work with you 
further on this because we want to create the kind of certainty 
that you desire.
    Mr. Pate. Great.
    Mr. Goodlatte. We think, in fact, that is what this bill 
does.
    Mr. Pate. Great. Thank you, sir.
    Mr. Issa. Lively discussion. I thank both of you. We now go 
for a lively discussion to the Ranking Member of the full 
Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I wanted to welcome 
again and thank the witnesses, our general counsel, Ms. 
Underwood, Todd Moore, and Mr. Pate. Let me ask you, Mr. Moore, 
would you have succeeded if H.R. 9, as you understand it, had 
been the law when you started out?
    Mr. Moore. I think if H.R. 9 was already passed, there is a 
highly likely chance that my company, my small company, would 
not have been targeted. I truly believe that my small business, 
as you know, we do not have the means to fight these litigation 
battles and these frivolous lawsuits.
    Mr. Conyers. Okay. All right.
    Mr. Moore. So I believe that I would have been able to 
focus on my business.
    Mr. Conyers. What say you, Mr. Pate?
    Mr. Pate. Well, again, I think that the two biggest 
concerns I would have had back in 2005 when I thought of this 
elliptical bicycle was I am going to get knocked off, so I have 
got to be able to defend my market, and number two, I have got 
to be able to raise money, attract employees. And at the time 
we figured out there was another inventor who had a patent that 
already issued, so we had to license it from him.
    And my concern with the first issue is at the end of the 
day, if someone is making profits off of my invention here in 
the U.S., that is wrong. And I should be entitled to seek 
relief from them, injunctive and damages. And I think the 
customer stay provision I believe would prohibit me from doing 
that, and I do not think in 2005 I would have had the 
confidence to move forward and take all this risk if I did not 
think I had a very good chance of being able to defend it here 
in the U.S.
    Mr. Conyers. Let me ask you about the demand letter. How 
would that have impacted or even addressed abusive patent 
litigation in your view?
    Mr. Pate. Well, I think the demand letter is a great place 
to focus just listening to the conversation and reading the 
testimony. It still seems to be the crux of where these 
extortion settlements come from, and it seems to be an unfair 
business practice. It is like false advertising or bait and 
switch. We just had a back and forth with a dealership we were 
trying to buy a vehicle from and they pulled a bait and switch 
on us. And I looked at the code for their State, and there was 
a bait and switch law about it, and it was an unfair business 
practice. And it seems like if there are businesses out there 
using fraudulent tactics to extort money from other businesses, 
it should be able to be handled by the FTC and the courts 
through an unfair business regime.
    Mr. Conyers. I agree with you. Now, how would the joinder 
provision have impacted the creation of your company and other 
startups? It seems that it might have made somebody less likely 
to want to invest.
    Mr. Pate. That is my second biggest concern and why I do 
not think we would have been able to get off the ground is 
because to your point, all we had at the time was a pending 
patent and a prototype. And so, to convince investors, 
employees, and a licensor to back us was really, really hard. 
And if we had to tell them that if they give us money, or if 
they join our company, or if they give us a license to a 
patent, and we enforce our patent, which is really the only 
thing we would have at that point, and we lose, then they could 
be personally liable, lose their house, I do not think we would 
have gotten investments. I know we would not have gotten the 
license to the patent. I do not think I would have taken that 
risk candidly, and I do not think my wife would have let me 
take that risk.
    Mr. Conyers. Well, what about the discovery limitations in 
the bill, H.R. 9? When you limit discovery, you are actually 
starting a suit without getting all the information that you 
need. And it seems to me that that is not the best way to go 
about going into a courtroom.
    Mr. Pate. The way I see it is when I go to enforce our 
patents, which we are going to do because we are going to get 
knocked off, the more information I can have about what the 
products are, who is doing it, how they are going about selling 
it, how much money they are making, the better from my 
perspective. I see my role as trying to defend our company, so 
the more information I can get at the outset, the better off I 
am.
    Mr. Conyers. Now, is heightened pleading going to help you 
any? The Supreme Court is likely to sign off on this somewhere 
between now and the end of the year. What do you think? Will 
that help or hurt in terms of small business?
    Mr. Pate. I think the current level of pleading at the 
Twombly standard is reasonable for patent filings. The level to 
which disclosure is required up front in H.R. 9 I think would 
cause more lawyers' fees and just sort of dotting I's and 
crossing T's out of the gate, and is not necessary. I feel like 
I could deliver a complaint that has the salient requirements 
without having to get quite as specific as within----
    Mr. Conyers. Thank you for your discussion.
    Mr. Pate. Thank you.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Issa. Thank you, Mr. Conyers. The gentlelady from 
California, Ms. Chu, is next.
    Ms. Chu. Ms. Underwood, your experience is a familiar story 
for so many small entities throughout our country. I know of 
credit unions in Southern California who were targeted because 
of certain features on their websites, and they have to settle 
given the high cost of litigation. I understand that your bank 
had to settle, but you know of other community banks that chose 
to litigate in court and were successful. Despite these losses 
in court, why do you think the patent troll that targeted you 
continued to send out demand letters to other parties?
    Ms. Underwood. We were one of the first small community 
banks in our market to be targeted, and we had not heard of 
this trolling because it had not hit our State. And there were 
only four of us that were targeted initially, and we were all 
very, very small banks. And when we talked to our attorney and 
he told us what the cost was going to be, could be, in the 
millions of dollars, in our mind there was no need to begin the 
process.
    I do know that other banks months later after many banks 
that had been identified were successful in fighting this. But 
there were a lot of settlements that were far greater than ours 
afterwards also.
    Ms. Chu. And even though they lost in court, they continued 
to send demand letters out. Why do you think they do that?
    Ms. Underwood. Because they were becoming successful.
    Ms. Chu. Because of those large settlements with the 
others.
    Ms. Underwood. When you weigh the costs of the attorney's 
fees versus the settlement, it is, as my kids would call it, a 
no-brainer in making that risk decision. And I think they 
recognize that, that banks my size cannot afford to fight. And 
so, the more that they were successful, and their settlements 
did increase as time went on, it was worth continuing.
    Ms. Chu. You also hold up the Covered Business Method 
Program at the Patent and Trademark Office as a low cost 
alternative to litigation. You state that there are several CBM 
proceedings that are underway at the PTO that can be helpful to 
banks and credit unions of all sizes. Could you describe how 
they would benefit?
    Ms. Underwood. How they are benefitting? Well, I think the 
fact that they are reviewing the patent outside of the suit 
process certainly does go to benefit the smaller banks. And the 
fact that many of these patent reviews are being brought by 
larger organizations who can afford to pay to get the process 
going does benefit the community banks. As a matter of fact, 
there is one very well-known DataTreasury patent process that 
is currently being reviewed, and the list of banks that are 
involved run from the very large to the very small. And there 
are many banks that are members of the ICBA that are involved 
in that that will benefit from that process at the end of the 
day.
    Ms. Chu. Mr. Griffin, Overstock.com is no stranger to 
patent infringement suits. You have been sued over 30 times in 
the last 10 years, and it sounds like your company is 
developing a reputation in which you are known to fight back. 
In fact, 12 patent trolls abandoned their cases against you 
when they realized you would pursue litigation. Can you talk 
about how this strategy is turning out to be a good investment?
    Mr. Griffin. It has turned out to be a good investment 
because we count on our brand as being a fighter in these 
cases, such that we become an unappetizing target. A lot has 
been said about demand letters today. Demand letters in my mind 
are in a different silo than full-blown litigation with a 
troll. For example, we do see demand letters, but frequently 
they are unsuccessful and they are not followed by a suit. Many 
of the trolls who sue us do not file any kind of a demand 
letter because they know that we might attempt to gain 
jurisdiction by a declaratory action in our own jurisdiction 
rather than a favorable venue for the troll.
    So for me, these two issues are separate. Yes, we should 
have more disclosure in demand letters, but it is not any kind 
of manageable line to correct the problem with patent 
litigation abuses that we see today.
    Ms. Chu. Thank you. Well, actually could I ask----
    Mr. Issa. The gentlelady, please continue.
    Ms. Chu. And you won a large case in 2011 where the patent 
in question was invalidated. Could you give us some details on 
that case, and what was the effect of that case?
    Mr. Griffin. It is a case that we were litigating in the 
Eastern District of Texas. The demand was for millions of 
dollars. We were litigating patents that were dating from 1998. 
In fact, I remember one of the jurors, who wound up being the 
foreman, stood up in jury selection process and said, ``I 
cannot imagine any patent from 1998 being applicable to the 
internet today,'' and that held to be true. The technology was 
completely inapplicable to what we were doing, and the jury saw 
it. We were fortunate in that case.
    Ms. Chu. Thank you. I yield back.
    Mr. Issa. I thank the gentlelady. We now go to the 
gentlelady from Washington, Ms. DelBene.
    Ms. DelBene. Thank you, Mr. Chairman, and thanks to all of 
you for being here with us today. We appreciate it. One of the 
most frequent complaints that we hear is that companies are 
shelling out large amounts of money to lawyers to defend 
themselves from abusive patent litigation, and that is just to 
get through discovery. In your testimony, Mr. Pate, you said 
that discovery limits may put patent holders at a disadvantage 
against infringing companies, making a patent suit riskier for 
patent holders. And in many cases, the patent holder requires 
lengthy discovery to learn the details of the infringer's 
product and business. The first question, have you ever been a 
party to patent litigation yourself?
    Mr. Pate. No, I am not.
    Ms. DelBene. Okay. So I am going to ask you this maybe a 
little bit theoretically. But first, could you elaborate on why 
it is so difficult to put together a more detailed claim? And 
then second, could you comment on how you would react to 
another company making extensive demands from you to share 
specifics about your products in business if you one day find 
yourself on the receiving end of a patent lawsuit?
    Mr. Pate. Those are great questions. On the filing a 
detailed claim, I think we all agree that Form 18 is too wide 
open, and that there is no reason patent litigation should not 
be at the same level of notice pleading as every other Federal 
litigation where you have to actually state a claim that you 
can show you deserve relief from. And I think for patent 
litigation, that should include what the patent is and what 
products appear to be infringing.
    The issue I have with H.R. 9 is I just look at it and think 
to myself, there are a lot of attorney's fees, and crossing T's 
and dotting I's, and is there going to be a little side 
litigation about did we fill the complaint out correctly? I 
mean, it just seems very enumerated.
    And when I see things that are very different enumerated, I 
think of lawyers, you know, finding ways to show that you 
screwed up the way the enumerations were done. And I think that 
is a problem. I do not think the philosophy of bringing patent 
litigation to the level of where all other Federal litigation 
is in terms of a complaint is a problem. I just think the 
specificity can get abused, especially if you are a small 
company.
    And if it takes me 4 months to get my complaint in order 
because my attorneys are not that good or whatever the case may 
be, I just see that as unnecessary. It is an unnecessary hurdle 
for me to have to jump over.
    Ms. DelBene. And, Mr. Moore, could you give me your view as 
well on both of those, on either side, if you are on either 
side of litigation?
    Mr. Moore. Yes. So my company, you know, was very small 
when it got sued. We were three people. So when that happens, 
you are faced to make some difficult decisions, and you reach 
out to a lot of people in the community, other CEOs, and 
everyone tells you the same thing. They go, I know how you are 
feeling and you want to fight back, but let me tell you, they 
are going to bleed you dry, and there is no way you can win. 
And when I got a pro bono lawyer, which is unheard of, I was 
ready to go all the way through the entire process, discovery, 
all the way to the end.
    But my lawyer actually convinced me, because I wanted to 
recover his fees, and I wanted to fight. And he said, well, it 
is going to take years of time. It is a very intrusive process. 
You are going to have to open up your bank records, everything, 
files, emails. You have got to realize what you are committing 
to, and I will tell you this. I have won awards before, and I 
have not gotten paid.
    So when he said that, it infuriates you. As an engineer you 
want to solve problems, and you want to fix things, and it does 
not seem like we can do that on our own, and that is why 
Congress really needs to help and fix this broken system we 
have.
    Ms. DelBene. But on discovery, in particular, whether you 
are the one who has a patent litigation against you, but what 
if you were also trying to defend patents of your own? Do you 
feel the same way about the discovery provisions?
    Mr. Moore. Yes. I believe that if you have good patents, I 
do not believe you are going to be affected by this bill. In no 
way does it say that you are not going to be able to go after 
people that are infringing on your intellectual property, and I 
am someone who is listed on numerous patents. So I can tell you 
I have worked with the patent system, and I think it is 
valuable, I really do. But I see it today, especially with my 
company, how it can be abused.
    Ms. DelBene. Thank you. Mr. Chair, I yield back.
    Mr. Issa. Thank you. We will now go to a second round. Mr. 
Pate, you made some statements, and I want to try to elaborate 
because I want the record to be clear. In your experience, you 
have been a law clerk, right, for a Federal judge?
    Mr. Pate. That is correct.
    Mr. Issa. So you have seen what Federal judges go through 
trying to move cases along, right?
    Mr. Pate. Yes, sir.
    Mr. Issa. Did you ever clerk while the judge was doing a 
patent case?
    Mr. Pate. No, sir.
    Mr. Issa. But a similar white collar----
    Mr. Pate. Many.
    Mr. Issa [continuing]. Civil tort claim normally is broken 
into two major parts. Did you or did you not do something 
wrong, and if so, what are the damages, right?
    Mr. Pate. That is correct.
    Mr. Issa. And then the second part, we will take down the 
did you do wrong. It is do you have the ability to pay? What 
are the assets? How do we get them? What should the judgment 
read? And we all understand that.
    So you mentioned something that concerned me, which is you 
said you have not actually sued anyone under your patent, but 
you said you want all the information. And because this is part 
of the Innovation Act, should not the plaintiff is interested 
in proving that the patent is, in fact, valid and being 
infringed, should not the discovery to the greatest extent 
possible in the shortest period of time get to that question? 
In other words, as Mr. Griffin, I believe, said in the opening, 
the markman. Is your patent and their product a match or vice 
versa. Would you not agree?
    Mr. Pate. I am probably not educated enough on the actual 
flow of a patent litigation, but I think that sounds 
reasonable.
    Mr. Issa. Okay, thank you. And the reason I ask that is, 
and I will go to Mr. Griffin or any of the other folks that 
have been mugged by a patent troll. Normally the troll presents 
an extensive amount of discovery--who are your investors, what 
are your contracts, who do you buy from, who do you sell to. In 
other words, a lot of information that might be interesting, 
but it does not have anything to do with do you infringe or 
not.
    So I would open it up to each of the witnesses that has 
some experience about what the discovery process was like to 
the extent, and I would start with Mr. Griffin because you got 
the most of it.
    Mr. Griffin. We have litigated a lot. Let me just tell the 
Committee that we have had several cases in which a patent suit 
was dismissed after markman, but only after we spent hundreds 
of thousands of dollars in discovery to get to that point. So 
it makes sense to kind of flip that because that is a legal 
determination that can precede the discovery.
    Mr. Issa. And for all the audience and people that are 
trying to understand the record, a markman is determined 
exclusively by the judge who interprets what the real meaning 
of the patent is. Is that correct?
    Mr. Griffin. That is correct. That is correct. And so, that 
the facts of the case can then be applied, it makes sense to do 
that before because then the discovery can be focused, and the 
parties know what they are doing. We had a case recently in 
which we received 39,000 pages of infringement contentions that 
were photo shots that simply came out. And so, even after these 
very light and thinly-developed complaints are filed, we have 
enormous allegations.
    Why could they not have been more specific to start with? 
And that particular case was narrowed down to only two claims 
by the time we got to trial. That is the extent of the work 
that a defendant has to do to discharge his discovery 
obligations under current law.
    Mr. Issa. Ms. Underwood, in your case, had you gotten to 
markman on your case, an element of the patent as you told us 
was internet connectivity, and you did not have it, right?
    Ms. Underwood. Exactly.
    Mr. Issa. Did your attorneys tell you that you probably 
would have been able to get the judge to dismiss the case at 
that point based on not having an element of the patent?
    Ms. Underwood. The attorney's opinion was, yes, that 
eventually it probably would be dismissed, but after the 
attorneys' costs exceeded what the costs were to settle.
    Mr. Issa. It was financially reasonable on behalf of your 
stockholders to settle even though you failed to have an 
element that in an early markman would have determined that you 
did not fall under the patent.
    Ms. Underwood. Exactly. There was no research done. The 
demand letter was very unclear, and clearly just mass mailed.
    Mr. Issa. Mr. Moore?
    Mr. Moore. We never reached that point. As soon as they 
found out that I had a pro bono lawyer, they were very quick to 
dismiss the case.
    Mr. Issa. I guess we need more pro bono lawyers.
    Mr. Moore. That would solve a lot----
    Mr. Issa. Anyone in the audience that wants to contact 
their friends, Washington has no shortage of lawyers. It is the 
pro bono that is hard to get. Let me just briefly make some 
people aware of something, and I mentioned my good friend, 
Judge Moskowitz. I had such a case early on in the 90's at a 
time in which markmens were new, and the judge did his markman 
essentially as we were impaneling a jury. And one element of 
the claim was it had to have a normally open relay that closed 
in order to do X, Y, and Z. That was my industry. And I only 
had one relay on the board, and it was normally closed.
    But to be honest, the plaintiff in this case--I was a 
defendant--had my entire customer list, had deposed all of my 
staff, including my sales staff, not just engineering, had 
detailed schematics of all my products. And, in fact, the 
judge, and I do not believe this was incompetence, told me 
after the fact that once he had made his markman, he knew we 
had won. He just felt bad not letting it go to the jury, and I 
am paraphrasing.
    That is the reason that I asked you this question is part 
of the Innovation Act is to try to streamline the process to 
lower for both the plaintiff and the defendant if, in fact, the 
plaintiffs believe they really do have a patent that is being 
infringed, and the defendant quite frankly may really believe 
that they are innocent, to get to that determination. And, Mr. 
Griffin, because you have had this experience and you have 
undoubtedly worked with other people, is it not true that even 
in the Eastern District of Texas, markmens often make cases 
settle because either the defendant realizes that they are 
going to lose, or, quite frankly, the plaintiff realizes they 
do not have a case?
    Mr. Griffin. That is true. That is true. And certainly it 
narrows the focus of discovery if discovery happens after the 
markman hearing.
    Mr. Issa. And I will rest my case with that, and yield. We 
have no other Democrats at this time, so I yield back and go to 
the Chairman of the full Committee, Mr. Goodlatte. I will not 
only yield, I will yield the Chair.
    Mr. Goodlatte [presiding]. The Chair recognizes the 
gentleman from Texas, Mr. Farenthold, for his questions.
    Mr. Farenthold. Thank you very much, Mr. Chairman. I 
appreciate you all being here and say thanks for sharing your 
experience. One of my concerns with the Innovation Act is that 
it weakens one of the best tools for weeding out patents, the 
interparty review and post-grant review process, by replacing 
the Patent and Trademark Office standard of the broadest 
reasonable interpretation of the patent claim with the district 
court construction. Mr. Griffin, as someone who has been 
directly attacked by weak patents, does this change concern 
you?
    Mr. Griffin. In the cases that we have been involved in so 
far, we have not used that provision.
    Mr. Farenthold. Mr. Moore, do you want to weigh in on that 
at all?
    Mr. Moore. I am not a lawyer, so I will leave it to Mr. 
Griffin to answer that one.
    Mr. Farenthold. All right. So, Mr. Moore, one of the more 
disturbing parts of your testimony is the patent troll case you 
were in, you were asked to send thousands of dollars by wire 
transfer to an overseas bank account. I mean, this sounds like 
one of these scams you get in your spam email, not like the 
American patent system at work. Is this something that happens 
regularly and that you have heard about, and can you tell me a 
little bit more about how that happened?
    Mr. Moore. Yes, absolutely. The patent troll instructed my 
lawyer that the reason was to wire to an international, and it 
was a different bank account overseas. It was a different 
company, so we were paying an entirely different company, not 
the company that was suing my company. He said the reason was 
to avoid U.S. taxes. He said if we were going to pay 
domestically through a regular transfer that we would have to 
pay the taxes.
    Mr. Farenthold. That seems like a scam, which kind of 
brings me to the overall demand letter issue. You have seen a 
lot of small businesses sue and settle under these demand 
letters, as Ms. Underwood's bank does. At some point you start 
to wonder, or at least I start to wonder, if we are going to 
run out of small business to sue, and we get into the end user. 
Obviously we have talked about the end user stay provisions and 
moving it up exhaustively during this hearing.
    But you get to the point of you can beat the rap, but you 
cannot beat the ride, and that is really a good description I 
think of a lot of litigation, and what the patent trolls rely 
on. All right, it is going to be hundreds of thousands if not 
millions of dollars to hire a lawyer. I can beat the rap, but I 
am going to end with a million-dollar ride.
    So let us talk a little bit about demand letter forms. One 
of the things that we want to do is actually be able to from 
the demand letter determine the scope of the appropriate and 
who the true parties are. And I think there is some 
misunderstanding about the intent. It is not so much to get at 
the investors, as Mr. Pate has talked about. It is to actually 
know who the inventors are and what the grounds of the patents 
are. How do you feel about tightening up on demand letters, Mr. 
Pate?
    Mr. Pate. So I think there is some confusion in terms of 
where the investors come in as through the joinder and fee 
shifting as opposed to the demand letter.
    Mr. Farenthold. But the idea behind the demand letters is 
you want to know who is really behind this. And some argue that 
this is going to chill investors in small businesses. If that 
business is sued for patent, do they end up having to be, you 
know, wrapped up in the process even beyond joinder at the 
demand letter level.
    Mr. Pate. So I have not thought deeply about that. My focus 
on investors and personal liability has always been tied to the 
joinder provision.
    Mr. Farenthold. And do any of the other panelists want to 
weigh in on the reform of the demand letters? Ms. Underwood?
    Ms. Underwood. I think reforming the demand letter process 
is key to stopping most of these frivolous attempts to extort 
money from small businesses. And I think if the letters were 
more transparent, if they had more detail about the particular 
patent that was being violated, and identify where or how, what 
grounds that they have to begin this process----
    Mr. Farenthold. So you can make some intelligent 
decisions----
    Ms. Underwood. Exactly.
    Mr. Farenthold [continuing]. Even possibly before a lawyer. 
One last question with the investors with Mr. Pate. So there is 
a study out that 55 percent of trolls target small businesses 
that do not have the resources to fight back. I think that is 
the reason we got a letter up on the Hill from 140 venture 
capitalists actually in support of patent reform. This week it 
came to us.
    Since their interests are specifically in the growth and 
success of small businesses across the country, it seems like 
venture capitalists should be concerned on both sides of that. 
It seems at odds with your testimony today. Even though you may 
not have already been targeted by bad acting plaintiffs, could 
you help me understand what kind of small business or inventors 
are targeted by bad actors in the current system and why they 
are targets?
    Mr. Pate. Sure. So venture capital is an interesting thing. 
I know the National Venture Capital Association is actually 
opposed to the bill, and I am not sure the number of members 
they have. I know it is in the multi-hundreds. And a lot of 
independent companies, large companies have their own venture 
capital arm, so Intel has a venture capital arm, Google has a 
venture capital arm. And so that arm may be acting to take a 
position that is beneficial to the overall organization and not 
necessarily beneficial to the venture capital wing of the 
organization. So it will be interesting to see who those 
venture capital firms actually were.
    I think the element that is so concerning for the investors 
is the personal liability piece in the sense that no investor 
in my company thinks they have personal liability for anything. 
And so, to introduce potential personal liability to investors 
in my company I think is a huge issue. To introduce it for me 
is a huge personal issue. I am not personally guaranteed 
anything in my company anymore. I like that. I do not want to 
go back to a position where I could lose my house because I do 
something stupid with my company.
    Mr. Farenthold. All right. I see I am out of time. Thank 
you for your indulgence, Mr. Chairman.
    Mr. Goodlatte. Thank you very much. The Chair recognizes 
the gentleman from Florida, Mr. Deutch.
    Mr. Deutch. Thank you, Mr. Chairman. And I thank the 
witnesses for their testimony, and thanks for sticking around 
so that we could come back and continue this. I just want to 
say this. I have the same visceral reaction to your stories 
that I think my colleagues have. And it is clear that too many 
small businesses and developers have been targeted by 
intimidating letters, with bogus claims, about vague patents 
that would not stand scrutiny today. Would not stand scrutiny 
already.
    The media has documented many examples from entities 
claiming they own patents on shipping confirmation emails, for 
the online purchases, to the concept of online shopping carts. 
We get it, and that has to be addressed. Patent trolls send 
demand letters to hundreds of small businesses, as you have 
already pointed out, that some of their targets will pay up 
instead of defending themselves in court.
    But unfortunately for them, but thankfully for all of us, 
some of those targeted by patent trolls have actually had their 
day in court, and as a result, many of the problems that H.R. 9 
claims to address are actually being resolved now by the court 
system and at the U.S. Patent and Trademark Office. And my 
concern today about this entire hearing and a lot of this 
debate all together has been the sense that we have two 
choices. We have a system where patent trolls are able to do 
damage to innovators, and creators, and small businesses on the 
one hand, or we have this bill on the other, and that you would 
have to choose. I think all of us, including Mr. Pate, would 
absolutely agree we have to do something about patent trolls.
    I would say Florida, not unlike the Chairman's home State, 
Chairman Issa's home State, is home to world class research 
institutions who rely on patents to turn their innovations into 
life-saving and profitable products. Last year in my home 
district, Florida Atlantic University entered into a licensing 
agreement with PortNexus and AT&T to bring a professor's 
technology to market that will disable texting functions in 
cell phones when a car is in motion and in the driver's seat. 
Texting while driving makes crashes 23 times more likely. And 
the licensing of this technology will help bring in revenue for 
the university. It will create jobs, and, most importantly, it 
will save lives.
    And the abuses that we have been speaking about, that I 
spoke of earlier, against developers and businesses by patent 
trolls have little in common with legitimate patent disputes 
that are vital to universities, that are vital to inventors, 
and they are vital to researchers. And yet it is those 
patenting innovations across every brand of technology and life 
sciences who are going to be dragged into court and into this 
over broad litigation reform in H.R. 9.
    If we go forward with something that is too broad, then 
that will, I believe, as Mr. Pate said, scare off investors, in 
this case from investing in the next great discovery like at my 
own university or universities around the country. Tipping the 
scales too far in a justified, but overbroad, attempt to stop 
patent trolls runs the serious risk of undermining one of the 
great strengths of the American economy.
    So I would just ask this question of panel. Is the problem 
how our entire litigation system works not just for the 
violator rights of legitimate patent holders, or is the problem 
bad actors who abuse the system by taking advantage of obscure, 
overly broad patents that PTO, we all now know, regrets 
awarding in the first place and would never issue under today's 
standards? And if the problem is patent trolls, why would we 
target these bad actors in abusive behaviors with procedural 
changes that will wind up harming innovators who rightfully 
expect to be able to defend their property rights in court? Mr. 
Griffin?
    Mr. Griffin. I would love to answer that question. That is 
a good question. The difference is in the tactics. There are 
abuses that are exploited because of the existing state of 
procedures in the law, and I disagree that these provisions are 
overly broad. These are narrowly tailored to take care of the 
abuses.
    Mr. Deutch. I am sorry. I just realized I do not have a lot 
of time. I agree completely that trolls should not be able to 
hide behind shell corporations, and I introduced legislation to 
address that. There are provisions that I think everyone 
believes can address that, and we ought to. Likewise, I 
absolutely think that this idea that a patent troll can send a 
demand letter and expect to pressure a developer or small 
business into paying up is also problematic.
    But this legislation does not address that at all. There is 
legislation that addresses the demand letter issue. This does 
not do it. This only refers to demand letters once we are in 
litigation.
    Mr. Griffin. This is more substantive.
    Mr. Deutch. It is not more substantive. It only addresses--
--
    Mr. Griffin. I believe it is more substantive.
    Mr. Deutch. The concern with demand letters is that they 
are sent--before we get to that point, I just would suggest, 
Mr. Chairman, that I would urge the Chairman, and I would 
strongly urge the community that cares so much about these 
issues that this does not need to be either/or. It does not 
need to be a current system which has abuses that must be 
addressed for the benefit of our economy, or a bill that goes 
so far in the other direction that it will stifle innovation, 
and that it will prevent the kinds of investments, and will 
prevent the creators in this country from being able to defend 
their intellectual property through the patents that they own. 
And I would yield back.
    Mr. Goodlatte. Well, I thank the gentleman, and I share his 
concern. That is why we are doing this bill. But I do want to 
give Mr. Griffin an opportunity to answer the question that you 
asked him. So we will give him an opportunity to do that right 
now.
    Mr. Griffin. Thank you, Mr. Chairman. No, this is a 
comprehensive thing. The issue of the demand letters, it seems 
to me that certain people are focusing altogether too much on 
demand letters. Demand letters are a problem, and that problem 
should be fixed. But they are not nearly the universe of 
problems associated with patent troll litigation abuses.
    The economics are all skewed toward the plaintiff, and the 
defendant is burdened with a lot of costs that are escalated in 
the manner of the litigation. I think that defending against 30 
different actions entitles me to say that. It is very difficult 
to defend under the current system of litigation that we have. 
I have seen complaints that are only 6 pages long with no 
specificity whatsoever, leaving us to try to discover what is 
going on.
    We spend hundreds of thousands of dollars before we can get 
to a markman hearing. That is simply wrong. A markman hearing 
that says that this patent does not apply to our processes. 
That is unfair, and that eats up jobs, it eats up development 
costs. It eats up innovation in this country. $29 billion are 
spent annually in this type of abusive litigation. To say this 
is a demand letter problem is understating the problem.
    Mr. Deutch. I agree completely. Can I just ask a follow-up, 
Mr. Chairman?
    Mr. Goodlatte. Sure, go ahead. Go ahead.
    Mr. Deutch. I agree completely. I am not suggesting for a 
moment that that is the only problem. What I am suggesting, 
just to focus on the issue of discovery, if a change is made 
that prevents any discovery, that prevents the patent holder 
from learning in discovery that not a patent troll, but an 
infringer not in a patent troll case, but in a real case where 
the patent holder's patent is being infringed upon, why would 
you shut off the possibility of having that patent holder go 
forward with a claim when something comes up during discovery 
that they were unaware of because the infringer hid it from 
them and because it was not apparent? Why would you take that 
away from the patent holder?
    Mr. Griffin. The answer is that in a markman hearing, the 
determination of what the patent covers is a legal 
determination. And if the patent does not cover the process 
that is in question, then the defendant ought to be entitled to 
dismiss that case before irrelevant discovery takes place, as 
it does now, over millions of pages of discovery that is 
unnecessary. Trolls do this to ramp up the costs of the 
defendants so that they will settle before going trial.
    Mr. Deutch. I am sorry, Mr. Chairman. I would love to 
continue this conversation, Mr. Griffin, in my office. I would 
suggest when we talk about the steps that this legislation goes 
that are just a bit too far, barring the discovery of 
electronic communications, for example, strikes me as something 
that will make it more difficult, again, for the patent holder, 
a patent holder who is trying to protect his property from 
upholding that patent against an infringer. But I would welcome 
the opportunity to discuss it.
    Mr. Goodlatte. And I would love to join in that 
conversation. There is nothing in this bill----
    Mr. Deutch. Let us do it in the Chairman's office.
    Mr. Goodlatte. There is nothing in this bill that bars the 
discovery of electronic communications.
    Mr. Deutch. We will look forward to having that 
conversation.
    Mr. Goodlatte. Sure. While we are at it, I am going to ask 
Ms. Underwood to address another subject here that is of 
interest. One of the major sources of abusive patent litigation 
stems from the Federal court's 1998 State Street decision, 
which opened the door to dubious business method patents, a 
decision that has brought real harm to our patent system. In 
recent years, the Supreme Court has helped to repair this 
damage and reverse the tide of such weak patents through its 
Bilski and Alice decisions.
    Can you speak more to the importance of the American 
Invents Act transitional program for covered business method 
patents, and also talk about the amount of capital that 
community banks invest in startups and small businesses in 
America, and the real costs of abusive patent litigation on 
investment in those communities?
    Ms. Underwood. The Covered Business Method Program has been 
a great program for the banking industry, but clearly for all 
industries, as you know. It covers any financial transaction, 
and it has addressed a number of the very large patent suits. 
And our position is that it would be wonderful to see that 
become a permanent program available to us, and it would be 
wonderful to have the PTO have the opportunity to waive any 
fees so that the community banks could take further advantage 
of that program.
    Mr. Goodlatte. Thank you. And, Mr. Griffin, are the 
problems surrounding patent trolling the result of certain 
plaintiff friendly judicial districts, and what can Congress do 
to help rebalance the scales so venue is no longer a weapon of 
choice for those engaging in patent trolling?
    Mr. Griffin. I think that is a difficult issue. There are 
certain dockets that are known to have more patent troll type 
litigation in them. It might be a good idea to study that to 
see how many cases are filed. The process, as you know, Mr. 
Chairman, the judges, and they have local districts and rules 
that make these districts, I think, more favorable to the 
patent bar. And that is why we get sued occasionally in remote 
districts.
    But I think these narrow changes that are in the Innovation 
Act, these targeted things will be useful not only to the 
courts in those jurisdictions to follow the law, but also to 
the court of appeals that reviews these decisions. I think that 
Congress needs to make statutory some of the changes about fee 
shifting and other things to make this more palatable to these 
local judges and to specify and give some certainty to a 
defendant who may wind up spending $1, $2, $3 million to defend 
a case that was unjustified in the first place, to be able not 
only to get an order for those fees, but also to be able to 
recover them at the end of the day, because one without the 
other is no good.
    Mr. Goodlatte. And that implies conversely your company is 
probably most often in the position of defending these cases, 
but there are people with legitimate patent claims who would 
want those same principles applied to them when they are trying 
to perfect and protect their intellectual property rights.
    Mr. Griffin. And my understanding since the Supreme Court 
had clarified in the Octane Fitness case this whole idea of fee 
shifting and other things. My understanding is that 30 of those 
cases, of the 30 cases that have been filed, actually the 
orders were 30 percent for plaintiffs. So plaintiffs do recover 
for unjustified defenses.
    Mr. Goodlatte. As well they should.
    Mr. Griffin. As well they should.
    Mr. Goodlatte. And finally, I had a dialogue with Mr. Pate, 
and my time ran out. I want to give you an opportunity to 
respond to some of his concerns with regard to the joinder 
provisions in the legislation, and my point that unless you are 
essentially a shell corporation, you do not have reason to fear 
the joinder provisions because they will not apply to you.
    Mr. Griffin. I think your point is correct that, in 
essence, the current business and favored business model of 
trolls is to have a shell corporation that has no other 
business other than litigation. As long as we have that 
distinguishing feature, Mr. Pate should not be concerned. I 
cannot tell him what his investors ought to be concerned about, 
but my experience in innovation, and technology, and investors, 
and everything else is like a law of nature. If there is 
something to be eaten, there will be something there to eat it. 
And someone will be interested in funding a company that might 
have to enforce its patents.
    I do not think that it is only one quality, a fearful 
venture capitalist that will do something on a wonderful 
product like his. I am going to go out and buy one.
    Mr. Goodlatte. They do it right now, and, in fact, it does 
not happen with the frequency that I would like to see, and 
that is why we have this industry of patent trolling. But the 
courts have the authority right now to pierce the corporate 
veil and do these things right now.
    Mr. Griffin. Yes, they do. Yes, they do.
    Mr. Goodlatte. Thank you very much. Does anything prompt 
any further questions from the gentleman from Florida?
    Mr. Deutch. No, thank you.
    Mr. Goodlatte. Thank you, and I want to thank all the 
witnesses for their testimony today. I think this has been a 
very helpful hearing. Get the magic words here to end it. And I 
want to invite all of you to continue to have dialogue with not 
Mr. Deutch, but other Members of the Committee and the 
Committee staff. This has been a very open and transparent 
process for about 2 years now that we have produced this 
legislation. And it is a very strongly bipartisan legislation 
that has been transparent in its formation. And it is, I think, 
important that we keep it that way as we work our way through 
the process.
    We are going to proceed with this legislation. The Senate 
will proceed with theirs. We will have to work out differences, 
and then we will work with the Administration as we have, by 
the way, throughout this whole process. The President endorsed 
this bill as it came out of this Committee in the last 
Congress. And that is how you get bipartisan legislation, which 
is really the only kind of legislation that gets signed into 
law.
    So this concludes today's hearing. I thank all the 
witnesses for attending. And without objection, all Members 
will have 5 legislative days to submit additional written 
questions for the witnesses or additional materials for the 
record.
    And this hearing is adjourned.
    [Whereupon, at 1:02 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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