More than a decade of court decisions and patent legislation has completely remade the inner workings of the U.S. patent system. Five major court cases from 2006 to 2016, along with 2011's America Invents Act, have changed intellectual property law in the United States more than the last 50 years combined.
Experts say that these legal and legislative changes, coupled with policy uncertainty, is having an effect on the innovation sector, which is trying to get its bearings in this new operating environment. Adam Mossoff, law professor at George Mason University and cofounder of the Center for the Protection of Intellectual Property, told Watchdog.org that:
"The legal uncertainty and the excessive kill rates of valid patents has made it very difficult for innovators in both the high-tech sector and the biotech sector of the innovation economy to justify investing billions in long-term R&D [research and development] to create the technological and medical miracles that too many people take for granted today."
This is all occurring while even more patent cases are making their way through the court system. One of the cases, MCM Portfolio v. Hewlett-Packard Co., challenges parts of the America Invents Act's constitutionality.
Unfortunately, activists in Congress are trying to overhaul the playing field yet again, despite the uncertainty that continues to plague the industry.
The Innovation Act in the House and the PATENT Act in the Senate are the forms of legislation that have been pushed by activists, and continue to be sold as kinds of "bipartisan" overhauls of a system that is already in crisis due to a decade of instability.
"Bipartisanship" is not what's driving the discussion on Capitol Hill. Giant corporations like Google, Apple and Samsung, who have been forced repeatedly to acknowledge their patent infringements on smaller innovators, are the ones behind this push. In addition, so is President Obama, whose White House has been tied in an unprecedented way to the technology sector.
Free-market groups have warned against this cronyism. Last year, the American Conservative Union and the Club For Growth both came out against the Innovation Act in a letter and an advertising campaign. Prominent conservative leaders like Michelle Malkin have written about the downsides of the rush to some kind of "action."
The stated reason for these new overhauls is noble: to combat "patent trolls."
Unfortunately, the way that the current legislative policy goes about this is counterproductive. The legislation takes aim at small innovators, academics, universities and others and tries to slap the "troll" label on them. Groups like the Association of American Universities and the National Venture Capital Association — major backers of the innovation economy — have expressed concerns with the House and Senate patent overhaul bills and their overbroad definition of what it means to be a patent troll. Major corporations benefit from blurring the line between innovator and patent troll, which is why they've largely supported the most overbroad definitions possible.
As we approach a lame-duck session of Congress — a time when many in the media push for "consensus" and "bipartisanship" — there will be a push in the media to portray these patent overhauls as something that both sides of the aisle can work for. But make no mistake: There's already been a decade of significant patent reform that has led to uncertainty and instability. What's needed is for cooler heads to prevail, and not a crony-driven rush to action.
Neily is the president of the Franklin Center for Government and Public Integrity, a nonprofit that publishes public-interest journalism at Watchdog.org.