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Aug. 10, 2015

The Hill: An inventor’s perspective on patent reform, by Bob Zeidman

This post originally appeared in The Hill on August 10, 2015.

Several patent-reform bills are circulating through Congress. As an inventor, entrepreneur, and high-tech intellectual-property litigation consultant, I have seen patent reform from many angles. The Innovation Act (H.R. 9) and the PATENT Act (S. 1137) should concern individual inventors and entrepreneurs, while the STRONG Patents Act (S. 632) best protects their interests. Let’s first review the problems with the PATENT Act and the Innovation Act.

Heightened pleading standards. It is already difficult for individuals and small companies to fund litigation against an infringer. This provision will raise the cost of litigation by requiring patent holders to provide significant details before litigation can begin.

Patent entity liability. This provision seeks to “unmask” patent holders’ identities. This might sound harmless, but I have seen how such information can bias a jury’s conclusions. Our legal system is based on equality under the law. Patent rights are not—and should not be—influenced by who owns the patent or how they operate their business.

Fee shifting. An individual inventor litigating against an infringer will incur staggering legal fees and significant risk. This provision will further increase that cost and risk by requiring the losing party to pay the winner’s legal expenses. What might be inexpensive to a large corporation could be financially devastating to an individual inventor. Our founding fathers worked to prevent this level of risk to individual inventors when creating the original Patent Act of 1790, which was designed to give commoners as much access to the patent system as wealthy individuals and businesses. For frivolous lawsuits, a judge already is able to award court costs to the winner.