As the saying goes, a bipartisan Congress can accomplish great things, except, it never happens… So one should not be blamed for maintaining a healthy dose of skepticism that anything good will come out of the last two weeks of congressional hearings by the US Senate subcommittee on Intellectual Property headed by Sen Tillis (R) and Coons (D). Nonetheless, what we witnessed during those hearings was a rare display of unanimity throughout the sub-committee that the system is broken, that innovators have a raw deal and it needs to be fixed sooner than later. This was the common theme throughout the two full weeks that saw 45 witnesses at the bar. (If you want to watch any or all testimonies, they are available here, here and here.) For those who’d rather watch 50 hours of Game of Thrones reruns instead, here’s a recap.
First, the main actors: Senators Tillis and Coons have made it abundantly clear that they believe the patent system is broken. Hijacked by large tech companies and with the Courts granting decisions that cause more harm than good, the system has gradually chipped away at every patent holder’s rights. Both senators also seem to understand that other countries (like China) have taken the opposite position and smart money, as a result, has been flowing out of the country. See their latest op-ed earlier this week, which they co-signed. I feel it is important to cite the following excerpts, as anyone who believes that rewarding innovation is the backbone of a strong economy should do well in absorbing the following:
“Since our country’s founding, the U.S. patent system has been one of the unsung heroes of America’s success story. Patents are based on a simple concept: that American inventors, entrepreneurs and companies whose hard work and expertise lead to a new invention deserve to reap the benefits of their work for a limited time.
That respect for intellectual property, enshrined in the Constitution, has incentivized millions of Americans over the years to develop lifesaving cures, revolutionary technological advances, and groundbreaking manufacturing innovations. Patents have played a key role in building America into the economic, academic and military superpower it is today.
All of that, though, is now at risk, because our patent laws have become overly complicated, riddled by uncertainty, and, frankly, hostile to innovation. Over the last several months, we’ve heard from dozens of business leaders, researchers, academics, practitioners, members of the public, and judges who have told us that America’s global reputation for having the gold standard for patent protection is fading, if not gone completely. To put it simply, many inventors, innovators and investors believe that it’s better to seek a patent and pursue new innovations in places like Europe or even China. That should concern every single American.”
Second, the supporting cast: in the last round of consultations leading to the America Invents Act (AIA) 10 years ago, and for years thereafter, the only people with a voice (and a lobbying budget) were the technology integrators who benefited directly from a weak patent system, as they were usually on the receiving end of licensing requests and patent assertions. For years, they found their quintessential villain, the Patent Troll, and the fiction worked so well that it was almost impossible to bring forth a different viewpoint. More recently, we have finally seen a counter narrative take a foothold and the hearings of the last two weeks were the culmination of this reversal, with former judges, past USPTO directors, inventors, practicing attorneys, well-known IP law professors, representatives from the life science industry (who also have a vested interest in a strong patent system), etc. follow one another and tell of the considerable impact the erosion of patent rights has had on our economic present and future. Notably absent from the hearings were representatives from the tech industry and their associations. This is disappointing, as it either means they were not invited (which would be a mistake as we need both viewpoints out in the open) or, worse, they already know this is not going to lead to anything of substance and they still have the “power of the purse” to influence Congress the way they want in the upcoming elections. Which begs the question, why bother being part of a process that you will later decry?
These hearings were in the context of Sen Tillis and Coons’ proposed bicameral (meaning it has support from the Democrat-led House as well) bill that would amend the current patent law in an attempt to clarify the murky patent eligibility question that keeps everyone uncertain as to whether a given invention can be protected without the need of a validation by an Appeals court decision or the PTAB, preferably by both. This effort is far more surgical and limited in scope than the STRONG Patent Act, also sponsored by Sen Coons, which is working its way through Congress and would go a lot further to restore the lost equilibrium toward patent rights owners. Needless to say, not everyone is happy with this, and organizations like the Electronic Frontier Foundation and others have voiced their displeasure. To the extent they can point to some of the unintended consequences of some language in the proposed legislation, their critics should be encouraged as it would make the new bill stronger and avoid the massive surprises (like IPRs) that the previous round of patent reform created.
All that to say that this has been a good month for innovators, and members of Congress have now created expectations that perhaps something meaningful will be done in the near future. Let’s hope they walk their talk this time, or their approval rate could sink to new lows at the worst possible time.
Louis Carbonneau, Founder & CEO
(IAM World’s Leading IP Strategists since 2012)
Tangible IP is a strategic IP advisory firm and the global leader in the sale and acquisition of high-quality patents, with a proven track record of success with over 3000 patents successfully brokered. If you are looking for strategic IP advice or have patents that could be monetized to raise capital or reinvest into your R&D, please contact us at email@example.com.
Mr. Carbonneau was a keynote speaker at the CCI & BDC Spring Intellectual Property Symposium: Supporting Canada’s IP Future in Toronto on May 15th 2019.
Mr. Carbonneau spoke at the Licensing Executive Society US/Canada Leading Edge Series: Standards In Licensing in San Jose on May 14, 2019.
Mr. Carbonneau was the keynote speaker at FORPIQ in Montreal on May 1, 2019.
Mr. Carbonneau spoke at the Smart Montreal conference in Montreal on Feb 4.
Tangible IP was retained by the prestigious National Research Council of Canada and by the Aluminum Association of Canada and AluQuebec to advise them on their overall intellectual property practices and strategy.
Mr. Carbonneau will be attending IPBC in Boston on June 16-18, 2019.
Mr. Carbonneau will be speaking at the next annual meeting of IPIC in Ottawa on September 25-27, 2019.
Mr. Carbonneau has been invited to speak at the Licensing Executive Society US/Canada Annual Meeting that will take place in Phoenix on October 21-24, 2019.
Mr. Carbonneau will be moderating a panel on the Future of IP Transactions at the World IP Forum in Taipei on November 6-8, 2019.
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