Patent News

Dec. 3, 2013

Forbes Op-Ed: Democrats AND Republicans wage war on technological innovation, by Rep. Dana Rohrabacher

This op-ed originally appeared in Forbes on December 3, 2013.

Rep. Rohrabacher represents California’s 48th Congressional District. He is vice chairman of the House Science, Space, and Technology Committee.

You might have thought a gun-shy Congress wouldn’t legislate sweeping reform efforts that will backfire on the whole economy.

But no.

Sadly, even some of my House Republican colleagues, by fixing their crosshairs on so-called “patent trolls,” are poised to do just that. Imagining themselves to be in the noble fight against abusive litigation, this very week House members are speeding passage of the misnamed “Innovation Act,” H.R. 3309.

In fact, they’re not even allowing an honest presentation of counter-arguments – these from the likes of prominent universities, the American Bar Association, and expert witnesses from industry itself.

Rep. Bob Goodlatte, R-VA, who is writing the legislation, may be well-intentioned, but the process over which he has presided has been unfair, unbalanced, and has yielded a “reform” that is harmful to Americans. With Congress’s approval rating at 6 percent, this is the time to broaden his hearings’ scope.

Messing with our established patent protection system may not seem as dramatic as healthcare reform (I can personally attest to the difficulty of alerting editors and producers to what’s at stake). But just ponder the massive wallop that making life more burdensome for our most inventive citizens will deliver to an economy already reeling from Obamacare.

We’re not talking just about depriving TV viewers of the next big flexible garden hose or vegetable slicer, testaments to American ingenuity that they are. This is more importantly about the multiplicity of design innovations that constantly make our technology more efficient and cheaper.

It is about whether we sustain American progress itself.

The primary focus of any patent-related legislation should be on funding the U.S. Patent and Trademark Office at levels necessary for them to do their work. The secondary focus should be on expanding the ability of individual inventors to defend their patent rights and to defend themselves against baseless accusations of infringement.

What really should be dubbed the “Anti-Innovation Act,” the Goodlatte bill focuses on the wrong issues. Instead, it raises the bar to file a lawsuit so high that small inventors will not be willing or able to bring lawsuits to restore their rights.

Because we are an overly litigious country, there is reason for my colleagues to focus on the judicial side of government. They need to let this sink in before they vote: Studies have shown that most patent lawsuits are legitimate accusations of infringement. Frivolous lawsuits make up a small percentage of all lawsuits filed in this area, but they get the most media attention because of a catchy marketing slogan, “patent troll,” which implies false claims of exploitation, loopholes, and unfair practices.

The changes the Judiciary Committee has come up with have nothing to do with these so-called “patent trolls.” Instead, H.R. 3309, if enacted, will hurt America’s independent inventors. It will:

  • Create more paperwork when an inventor files an infringement claim, increasing both the costs to defend his or her rights along with the potential for dismissal of a case on a technicality.
  • Switch us to a “loser pays” system, which dramatically increases a potential, disastrous financial downside for a patent holder or anyone the patent holder may do business with (and is thereby attached to a case). Large corporations simply aren’t vulnerable to such financial ruin after losing one lawsuit.
  • Force a patent holder who files a claim for infringement to provide significant information about his or her business dealings to the accused infringer; to maintain a new bureaucratic reporting requirement and a new bureaucratic fee by being forced to pay recordkeeping fees to maintain their current record at the patent office.
  • Eliminate the independent judicial review of patent applications, Section 145 of Title 35, which has been the law of the land since 1836. The Patent and Trademark Office requested that judicial review be done away with because it is burdensome for it to defend its actions in court on the rare occasions this provision is used. This request, stripping away the rights of Americans, comes because it is inconvenient for the bureaucracy, leaving a patent applicant with no independent recourse outside the patent office.

This assault on American inventiveness, consideration of which is imminent on the House floor, is not reform. It is an anti-patent bill, consistent with a decades-long attack by multinational corporations to emasculate America’s technological advantage.

If H.R. 3309 passes, Congress will have patented its special boneheadedness for generations to come.