Not everyone agrees that another round of patent reform is necessary at this time.
Doubters believe that the Innovation Act, H.R. 9 in its current form, will not improve the United States patent system, but merely make it more acceptable to some of the businesses threatened by it.
Three recent articles make compelling arguments against the current bill, which is largely identical to the one (HR 3309) that passed the full House in late 2013 that died in the Senate.
Thirteen-term Congressman Dana Rohrabacher, (R-Southern California), is not a supporter of this bill. His recent op-ed in The Washington Times is worth reading. It’s called “Patent ‘reform’ is killing the right to invent – How a congressional misstep could imperil creativity.”
“Just because a measure holds itself up as ‘tort reform’ should not mean it escapes the scrutiny of free-market Republicans. It should instead call for a skeptical second look, and then more throughout its progress. Guaranteed: Such close-eyed analyses of this bill will encourage deep suspicion…
“This Republican Congress must not allow this creativity-killing legislation to be a part of its legacy.”
Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects. He believes even more strongly than Congressman Rohrabacher that H.R. 9 is not the bill necessary to move the patent system forward.
In fact, its restrictions will move it back, and make the U.S. less competitive with other innovative economies.
“The situation is dangerous, says Epstein, because Goodlatte’s bill violates three fundamental rules of legislative reform,” Professor Epstein wrote recently in Forbes.
“It moves too quickly. It develops a set of unneeded ad hoc rules for patent litigation. And it has a multitude of costly but unnecessary procedural innovations. Viewed as a whole, the Goodlatte bill combines dangerous rigidity with excessive discretion.”
The article is called “Patent Law Gone Awry.”
In a recent PatentlyO Ted Sichelman, of the Univeristy of San Diego School of Law, says the proposed Innovation Act’s “fee-shiftng is biased and against patent holders,” and that it will likely lead to increased PAE (patent assertion entity) activity, not less.
“The upshot of these provisions,” says Sichelman, “is to massively skew fee-shifting against the interests of patent holders, leading to an asymmetric risk that would very likely cause risk-averse inventors and assignees to avoid directly enforcing their patents, sometimes even strong ones.” The article can be found here.
Congressman Rohrabacher’s and Professors Epstein’s and Sichelman’s recent pieces make for interesting reading, especially if you are among the many who are concerned about how new ideas get nurtured and shared.
Image source: The Washington Times