Much has been written about “patent reform” and there are plenty of high-octane opinions, many of which are well-intended, but misinformed.
I put parentheses around patent reform because reform means very different things to different people. Put another way, appropriate solutions only emerge when the problem at hand has been accurately described and defined in objective terms.
Description: the US patent system does not work as well as it should or could and should be refined or reformed.
Almost everyone would agree with the above statement, politicians and inventors alike.
Here is a simple query: please describe and define the problem (that calls for patent reform) as clearly and objectively as you can. Here, from my perspective, are the two most common answers:
Politicians and Pundits:
Non-practicing entities, especially so-called patent trolls, may accumulate huge portfolios of patents and then file patent infringement lawsuits targeted to major corporations resulting in millions of dollars of fruitless litigation. These lawsuits effectively restrain real innovation and force targeted companies pay settlements rather than enduring even higher costs of prosecuting the lawsuits. The trolls win by default.
Patent reform is needed to “handcuff” patent trolls from behaving in this way, thus unleashing more innovation and new products.
The US patent process has become expensive and slow to the extent that small, independent inventors – the source of much innovation and new products – find it extremely difficult to patent innovative new processes and products. Over 1 million pending patents are in a log jam that often results in 3 – 5 years from filing date to issuance. This expensive patent logjam effectively restrains real innovation,causing millions of inventors to simply give up.
Patent reform is needed to speed up the process of patent issuance and, if possible, reduce the costs borne by inventors, thus unleashing more innovation and new products.
So far, the politicians and pundits are winning and inventors are losing.
Why Politicians and Pundits Have it Wrong
Politicians, by vilifying and targeting so-called patent trolls as scofflaws that must be restrained, craft restrictive patent legislation that effectively punishes all patent holders, especially small independent inventors – a key source of innovation.
Politicians seek to make it more difficult for anyone to file a patent infringement lawsuit, especially non-practicing entities (NPEs). Additionally, they wish to make it far easier for parties to call for any issued patent to be re-examined, possibly resulting in invalidation of patents that may have been in effect for years. The thought is that by doing this, they will blunt the key tools used by NPE patent trolls: patent infringement lawsuits levied on the basis of large portfolios of patents.
Here is the problem with that approach. Small independent inventors are often NPEs simply because they may spend years attempting to license their products as a cost-effective means to get to market. They cannot afford to commercialize the products themselves and may be “non-practicing” for an extended period of time.
Also, the patent process is already both lengthy and financially taxing upon small inventors, who breathe a sigh of relief upon finally receiving their Notice of Allowance from USPTO granting them an issued patent. If it becomes easy for any “aggrieved” party to call for any issued patent to be re-examined, small inventors could be hugely impacted with considerable legal expense of having to re-litigate their patent all over again, treating them as if they are effectively guilty till proven innocent.
Finally, patent infringement lawsuits are already punitively expensive and out of reach for most small inventors. Making it generally even more difficult to file such a lawsuit will make if virtually impossible for an independent inventor to legally restrain an infringer of their patent removing all options for patent enforcement for them.
Patent trolls have plenty of financial and legal resources at their disposal. Any new so-called patent reform laws intended to limit them will instead cause them to simply redirect their actions to exploit loopholes.
Also, a real estate magnate may quietly purchase many adjoining tracts of land from property holders surrounding a valuable development, forcing the developers to deal only with them. Nothing illegal in such strategic property accumulation. Likewise, a patent troll may choose to purchase and accumulate a large number of software or technology patents, strategic IP accumulation – nothing illegal in that.
Patent Reform – the Enemy of Innovators and Inventors
For all the reasons described above, so-called patent reform measures being mooted by Congress and various pundits is a malicious force threatening to crush innovators and inventors.
The Road to Hell is paved with good intentions.