By Stephen Wren - 03/05/08 05:07 PM EST
(Regarding special report on intellectual property, March 4.) In response to “Modernizing our patent law would stimulate our economy” by Sens. Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah), I, as an inventor, and many small entities, universities, trade unions and even the U.S. Patent and Trademark Office respectfully disagree. Rather than stimulate our economy, the bill will only further erode our ability to compete with foreign countries.
As pointed out in Rep. Dana Rohrabacher’s (R-Calif.) piece, “Electronics industry seeks advantage at others’ expense,” China and India are on record as acknowledging that the bill would make it easier for them to steal our technologies here at home. They can already do so pretty much at will in their own countries, as exposed in Sen. Byron Dorgan’s (D-N.D.) piece, “China’s piracy and counterfeiting: A double standard of Olympic size.” Do we really want to make it easier for them to do such stealing in the U.S.?
Sens. Leahy and Hatch state that S. 1145 “is the product of years of deliberation and study within Congress and by many esteemed agencies and institutions, including dozens of hearings.” The problem is that to a great extent those hearings only included parties who are most likely to infringe patents — namely, very large tech companies, banks and insurance companies. Smaller companies, inventors and universities were nearly absent and in some cases blocked from participating. Understanding that a large share of America’s groundbreaking inventions come from them, how can it be said that the deliberations have been all-encompassing or complete?
It is true that there have been no significant changes to U.S. patent law for many years. But is change really needed, and will it be beneficial? For the last several decades the United States has led the world in technological innovation.
Why then should we change our laws, particularly if changing them would bring them more in line with the laws of those countries we have been leading? How does that make sense?
Also, the facts do not support the contention that there is a patent-quality issue. Over the last several years, roughly half of all litigated patents have been upheld in court. That’s pretty balanced and suggests there is no problem with patent quality. Further, seldom do cases ever make it to trial, as the parties settle out of court.
With almost a half-million patent applications filed each year, a few are bound to be issued that shouldn’t. However, rarely are they ever an issue because you can’t enforce them without money, and small parties — those who are always the ones accused of this — won’t get the money unless they have a good patent. Keep in mind it costs the patent holder at least as much in a patent suit as it does the accused infringer. Sometimes it costs more because infringers will band together and share costs. Investors are not stupid. If they don’t have confidence in your patent, they will not invest.
It’s that simple. Bad patents do not get funded.