A Need To Save the US Patent System: A Warning from Dana RohrabacherBy
Many leading IP professionals working with the US patent system are growing increasingly concerned about the weakening of the IP system there. Some are so concerned that they are wondering what steps can be taken to save it. Save it from what, you might ask? Save it from erosion of the basic property rights that the Constitution sought to protect. Solve it from the capricious destruction of the incentives that inventors need to create and share their work. Save it from judges and politicians who see patents and property rights as problems.
One man who wants to save our IP system is Rep. Dana Rohrabacher (R) from Californiaâ€™s 48th District and a member of the House Science and Technology Committee. He recently authored a piece for the Washington Times called “Patent â€˜reformâ€™ is killing the right to invent: How a congressional misstep could imperil creativity” (March 1, 2015). I agree with much of what he says.
He warns that Congress’s zeal to stop “patent trolls” will actually result in them simply doing the bidding of powerful companies who are annoyed by little guys able to defend themselves with patents. In effect, Congress is being manipulated into apparently “reforming” the US patent system but in reality they will be weakening it for small inventors and making it more friendly to the big empires that see patents as unpleasant sources of cost and annoyance. Here is some of what Rohrabacher has to say:
With the best intentions, and naively going along with the corporate worldâ€™s hugely financed publicity machine, Congress is about to stomp on Americaâ€™s most creative citizens, its inventors.
The target is not the much-hyped â€œpatent trolls.â€ They are a minuscule matter. Whatâ€™s at stake is average Americansâ€™ constitutional right to own what theyâ€™ve created. Weâ€™re really up against corporate lawyers acting like ogres, devouring the little guyâ€™s innovative accomplishments.
Many of my colleagues, without understanding the legislationâ€™s impact, will soon vote on â€œHR 9,â€ a misnamed â€œpatent reform,â€ also dubbed â€œpro-innovation,â€ that is anything but. In reality, it deforms our patent system beyond recognition.
This legislation â€” pushed by my Republican colleague, House Judiciary Committee Chairman Bob Goodlatte, and deep-pocketed multinational corporations â€” appears on its way, again through the House, to the Senate, thence to an eager President Obama for signing.
When that happens, Americaâ€™s exceptional system of invention will be shoveled into the depths of mediocrity, there to seep into the murk in which less scrupulous global competitors spend their resources.
In the last session, a bipartisan band of my Republican friends (some of whom made their pre-political marks as patent-holding inventors); members of the Black Caucus; and a heroic Ohio congresswoman, Democrat Marcy Kaptur, failed to dissuade our House colleagues that the bill was not the litigation-curbing effort as advertised.
The bill went to the Senate where, fortunately, it stalled. Itâ€™s back, this time resurfacing in the House with just one hearing. A whole class of small inventors, among the many who will be injured, is being kissed off as scarcely deserving a voice. All in a dayâ€™s work for the corporate influencers who shaped HR 9 from start to finish.
Just because a measure holds itself up as â€œtort reformâ€ should not mean it escapes the scrutiny of free-market Republicans. It should instead call for a skeptical second look, and then more throughout its progress. Guaranteed: Such close-eyed analyses of this bill will encourage deep suspicion.
Fair-minded members will find themselves aghast at how this leaves defenseless our individual inventors, small and midsized companies, researchers, even universities who depend financially on their patent portfolios. It is a coup in the making by the biggest and best protected operators….
Legislative reform efforts invariably build on a narrative of great injustice. This one moves wildly beyond the need to fix real abuses, wherein at considerable cost companies must defend their legitimately acquired patents against unscrupulous claimants.
But the term â€œpatent troll,â€ directed against such bad actors, has been transmogrified by corporate marketers to include legitimate small inventors â€” many of them minorities, which is why my Black Caucus friends sized up the issue astutely â€” who are outgunned and outspent when they try to protect their intellectual property.
Almost all infringement cases are brought by people who own a patent legitimately. If not, such cases should be decided in court. There is nothing wrong with bringing such matters to court â€” a cornerstone, not of crony capitalism, but of the free market itself.
Our economy and culture depend on the disruptive nature of innovation. Our Constitution deliberately made all people equal, giving no advantage to those of social status, wealth or position. The founders, even before they added the Bill of Rights, secured the right to hold patents in the Article I of the Constitution itself, the only right mentioned prior to the amendments.
We all know our countryâ€™s history of innovation. Large companies reject new ideas. It is the innovator who challenges the status quo, not the corporation.
Under the proposed bill, the pretrial discovery process â€” just one part of many dubious sections â€” tilts heavily against the small inventor, who of course must share his or her secrets with an opposing corporationâ€™s well-armed legal team. In another era, I might have considered this an innocent, unintended consequence of ill-considered drafting. Not now.
I implore my colleagues in both the House and Senate to stop this monster aborning.