Patent News

May. 27, 2014

CQ Roll Call Commentary: On Patents, the Senate Did the Right Thing, by David Kappos

This article originally appeared in CQ Roll Call on May 27, 2014.

David Kappos is a partner at Cravath, Swaine & Moore. He served as director of the U.S. Patent and Trademark Office from 2009 to 2011.

But Lincoln probably knew them by a different name. In the Civil War era, there were calls to deal with “patent sharks” who bought dormant patents on agricultural tools and threatened to sue farmers. Lincoln stood strong against calls to curtail the patent system because he understood American innovation has always been supported by a system treating intellectual property as property worth protecting. There have been many prominent inventors between Lincoln’s day and ours who would qualify in the minds of some today as a “troll” simply because they chose to license their patented innovative ideas rather than manufacture the resulting products.

The risks to such inventors — along with the businesses they found, the jobs they create and the technological progress they bring — are something neither the House nor the Senate has publicly examined in the face of urgent calls to pass a bill.

I am pleased to see patent litigation reform efforts now taking into account inventors’ concerns. And I hope lawmakers will now get a chance to read the Government Accountability Office’s recent and all-but-ignored patent-litigation report. The USPTO and courts are already making changes to fix problems in the law, the GAO found, and it noted that non-practicing entities are NOT driving the growth in patent litigation.

By examining the findings of Congress’s own investigative arm, lawmakers can ensure they do not overlook both the history of the patent system and its present as well.

These issues will undoubtedly come before the Judiciary Committee again, and perhaps sooner than many think. I am optimistic the result will be the better for the added deliberation, and can address the abuses we all would like to see eliminated without damaging the patent system for America’s vast array of good-faith innovators.

Now that they have more time to consider patents, I hope members will examine closely the innovation ecosystem this whole debate is about. As Lincoln knew, ours is a strong IP system that fuels the fire of human genius. It is this powerful incentive that has enabled our world to evolve into the amazing and technologically advanced place it is today.