Patent law promotes the progress of technology by rewarding inventors who patent their inventions. From the beginning, the Constitution empowered Congress to pass a Patent Act, and President George Washington called for it in his first State of the Union address. Congress acted affirmatively in 1790, with periodic updates ever since. As Abraham Lincoln said, the patent system adds the fuel of interest to the fire of genius. Thomas Edison, Henry Ford and Steve Jobs gave us electric lighting, affordable cars and smartphones. They invented, they manufactured, and they were rewarded with patents and profits.
Now the patent system is under attack from the highest levels of government, starting in the Oval Office, continuing in the top appointed position in the Patent Office, and extending into both Houses of Congress.
So-called reformers ignore inventors, attack ogres
Strangely absent from current discussion of the patent system is any mention of inventors. They don’t seem to have much political clout.
Who is behind the attacks? What is their agenda? How are they advancing their goals?
The “who” is Google and its United for Patent Reform Coalition.
Their goal is to insulate themselves from patent infringement lawsuits. They want to hinder inventors and patent owners in every way they can.
Their tools are fear mongering and lobbying.
Lobbyists create fear of patents
Fear is a primary tool of politicians and lobbyists. Richard Nixon launched a war on crime. Ronald Reagan waged a war on drugs. Bill Clinton bested them both with his “tough on crime” policies. Now there are 2.3 million prisoners in a U.S. prison system that is widely acknowledged to be a failure. It’s a multi-billion dollar industry, and the private prison industry spends millions of dollars every year on lobbying to keep prisons full and profitable for their owners.
“If you want to control someone, all you have to do is to make them feel afraid.” – Paulo Coelho.
Millions spent on lobbying
Google has raised eyebrows and the interest of politicians by spending a record of $5 million on lobbying in the first quarter of 2015 alone. One of their stated goals is to insulate themselves from patent infringement lawsuits.
Unable to attack inventors, Google has created mythical ogres that it calls “trolls.” The dehumanized creatures are targets for annihilation.
Two anti-patent initiatives bear watching. One is the Patent Office’s new emphasis on quality. Rejection rates, already high, presumably will be ratcheted still higher. Henceforth, only the strong, powerful and wealthy need apply for patent protection. “Compact prosecution” means that for every applicant’s reasonable filing fee, that applicant will be entitled to two—and no more than two—rejections. Further rejections will be obtainable only by paying another filing fee. Independent inventors are being broken by legal fees and costs. If they manage to obtain the grant of a patent, it might be only to see that patent challenged in any of several forms of post-grant review, the most popular being inter partes review. The Patent Office giveth reluctantly; it taketh away boldly.
The other anti-patent front is being waged in Congress. Several bills are wending their way through the House and the Senate. By their titles, one would think that all the bills are dedicated to fostering innovation and entrepreneurship. Will the U.S. patent system continue to shine? Some of the new bills would make it harder, slower, and more expensive for inventors to enforce their patents. Patent cases are to be singled out from the usual, minimal, “notice” pleading standard for more tedious, costly, detailed, fact pleading, as if pleading practice will do away with the extensive discovery typical in U.S. litigation (and indeed that seems to be an objective). This detailed pleading requirement will spawn satellite litigation. Defendants will contend that complaints are insufficiently detailed.
In proposed legislation, courts are to be required to consider every possible way to get rid of a case before they pay any substantive attention to it. Patent owners will be inflicted with claim construction exercises, as defendants argue that they can’t possibly be expected to understand what the patent means until the patent owner explains each and every word with 10 to 50 more words. Discovery is to be stayed until the process is completed to the defendant’s satisfaction.
In the unlikely event that an independent inventor can get past the barriers to be imposed by new, burdensome rules and procedures, there’s the possibility that the inventor and his or her attorneys might have to pay the defendant for the cost of the defense. This is called the British Rule. The long-honored American Rule, which allows plaintiffs to have their day in court without fear of having to pay the defendant’s fees, will not apply in patent cases. Inventors, it seems, should be punished. Name calling (“trolls”) isn’t enough. Inventors who seek to enforce their patent rights should be taught a lesson: They should stay in their garages, basements and laboratories, and leave business, applied technology, the patent system, and the legal system to large corporations. The techs who started in their own garages have climbed the ladder of success, and if they’re allowed to have their way, they’ll pull up the ladder behind them.
The country needs a strong patent system
Many so-called patent reform bills would undermine the rights of inventors and the stability of the country. What is needed is for Congress to resist pressure from lobbyists and do the right thing for inventors and the country. Congressmen and Senators should vote against the anti-patent acts.