IP Watchdog: A Short History Lesson on Patent Policy, by Robert Taylor
This post originally appeared in IP Watchdog on June 21, 2015.
Robert Taylor is the founder and owner of RPT Legal Strategies PC in San Francisco and Silicon Valley.
To avert serious and lasting damage to our innovation ecosystem and our most promising young companies, it may be helpful to consider some history that appears to have been forgotten. For 225 years, the U.S. patent system has been one of the crown jewels of American economic policy, providing incentives for the commitment of time and money to create the next generation of technology. The Patent Act was one of first pieces of legislation adopted in 1790 by the first Congress, reflecting the Founders’ considered and thoughtful balancing of two competing objectives – allowing free and unfettered use of information and ideas in the public domain while encouraging innovation through limited protection of new and useful inventions. Those twin objectives have long provided a framework for managing the set of rules we call patent law. The current Congress, however, seems determined to abandon, or at least weaken, the latter of those objectives – the use of patents as incentives to innovate.
Despite a major overhaul of the U.S. patent system only four years ago that included the creation of special procedures for challenging weak and invalid patents in the Patent Office, Congress is now pursuing legislation designed to make it more difficult, more risky and far more expensive to enforce all U.S. patents, even the best and strongest of patents on the most important inventions. H.R. 9 and S. 1137, both of which are currently working their way through the congressional process, reflect the agenda of some of the world’s largest corporations who want to make it more difficult for startups and small innovative companies to erode their markets with next generation technologies. Although members of Congress are being told that these bills will crack down on “patent trolls,” the reality is that the legislation will have less impact on NPEs than on companies trying to interest investors in funding the development of new drugs, new medical devices and myriad other breakthrough technologies.