In the patent litigation reform debate, note something peculiar about opponents' arguments.
Namely, they routinely include among their claims that patent litigation reform legislation before Congress would somehow upend America's patent system or intellectual property (IP) rights generally. The reason for that is obvious. Opponents cannot with a straight face argue that our judicial system isn't in desperate need of litigation reform, particularly to conservative and libertarian audiences. Consequently, they resort to cursory claims that litigation reform would weaken patents and undermine America's standing as the most inventive nation in human history.
And conspicuously, opponents never seem to cite actual legislative text or verifiable data in support of their cursory allegations.
An organization spearheading the opposition movement that calls itself Save the Inventor provides a prototypical example:
America has been on the cutting edge of innovation for over 200 years because of a strong U.S. patent system. If Congress passes harmful patent legislation, it will undermine the system that has paved the way for every invention since the automobile. That will mean fewer new ideas, fewer jobs, and a weaker economy. We must keep the foundation of American innovation strong for generations to come.
We certainly agree with their opening and concluding points. America's unrivaled record of innovation indeed springs from our system of patent rights, and we must keep that underlying system strong. No organization defends IP rights more tenaciously than CFIF, and we wouldn't support legislation that undermined them.
The problem is that opponents' habitual claim that litigation reform would somehow undermine our underlying patent rights system is flatly false. And the falsity of their claims is betrayed by the fact that opponents conspicuously fail to cite language in the bill that somehow targets patent rights, as opposed to patent litigation abuses such as frivolous claims, intentionally vague allegations and excessive discovery.
In contrast, we happily cite actual provisions of the law in substantiating our claims. We also point to hard, verifiable data of widespread abuse under our current system of patent litigation.
That's because the truth is on the side of patent litigation reform.
The Innovation Act, the bill that we most strongly support, advances four primary goals, none of which have anything to do with altering our underlying patent system itself:
(1) Strengthening prevailing litigants' ability to secure attorneys' fees and litigation costs for the expense of being dragged into court to defend their legitimate patent rights, which would thereby deter frivolous litigants who exploit the current presumption that each side pays its own costs and fees;
(2) Improving pleading standards so that parties must state their claims with greater clarity, rather than simply pasting boilerplate allegations in order to begin imposing litigation costs on opposing parties;
(3) Increasing transparency regarding the true owners of disputed patents; and
(4) Streamlining the discovery process, which anyone who has been forced to litigate can confirm remains an overly burdensome nightmare under our current judicial rules.
So how about some more specifics?
Opponents of the Innovation Act falsely claim that it would deprive judges of discretion in assigning costs and fees to losing parties, but that's simply not true. The bill specifically states that losing parties won't be forced to pay where "the court finds that the position and conduct of the nonprevailing party or parties were reasonably justified in law and fact or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust."
That is a common-sense reform that would improve all American litigation, not just patent litigation. Accordingly, opponents of reform must answer how requiring parties to simply demonstrate that their conduct was "reasonably justified in law and fact," which isn't a difficult burden to meet for any good-faith litigant, is somehow unfair or disruptive of our underlying patent system. The only people with anything to fear would be frivolous litigants and their equally frivolous attorneys.
Here are some more specifics from the actual language of the bill.
Litigation reform opponents claim that the legislation would somehow chill legitimate parties' willingness to file lawsuits due to stricter pleading and discovery requirements - as if the overriding risk to our judicial system is excessive reluctance to sue, rather than excessive readiness to sue.
The text of the Innovation Act, however, quickly refutes such claims. It allows exceptions whenever "the information is not reasonably accessible to such party," or the information is "not readily accessible" or in the case of "confidential information." Additionally, the text makes clear that, "In special circumstances that would make denial of discovery a manifest injustice, the court may permit discovery, in addition to the discovery authorized ... as necessary to prevent the manifest injustice."
The Innovation Act passed the previous Congress by a bipartisan 325-91 majority. The reason is obvious. The bill offers badly needed remedies to patent litigation abuses, without jeopardizing America's underlying patent system itself.
The fact that opponents conspicuously fail to cite textual provisions in support of their claims to the contrary reveals that the only people with anything to fear are questionable litigants and attorneys seeking an easy windfall, not good-faith patent holders.
Lee is senior vice president of Legal and Public Affairs at the Center for Individual Freedom (www.cfif.org).