It’s easy to be against so-called “patent trolls.” First, there’s the name—no one wants to be associated with something that sounds like the evil cousin of a leprechaun. Then there’s what patent trolls actually do. Even if you’re not currently collecting a paycheck as an intellectual property attorney, you likely have some idea of this scheme: A “troll” sues big and small companies alike, demanding payment for vague reasons spelled out in scary and official-looking letters. It often works: Small business owners who are too fearful or inexperienced to fight the trolls pay up, as do large corporations who don’t have the time or desire to fight.
It makes sense, then, that Congress would seek to curb this reprehensible behavior. There’s just a couple problems with that.
For one thing, the issue of so-called patent trolls isn’t as all-encompassing as one might believe to hear the talk from Congress (not to mention the barrage of advertisements addressing the issue). In fact, an overwhelming majority of patent infringement lawsuits from 2007-2011 were brought by operating companies.
But to the extent that these so-called trolls do exist, Congress is using a grenade to quash a gnat on its collective windshield. Though the current Congressional proposals to reform the patent system may be well-intentioned, they’re so far-reaching that they’d harm not just trolls, but average garage inventors. Worse, the legislation would make it harder for garage inventors and small businesses to protect themselves from having their inventions and ideas stolen.
That’s because the proposals would make it harder not only to bring a weak or fraudulent claim asserting patent rights against a company, but also to bring a quite legitimate claim. And even though no inventor wants to go to court to defend their patent rights, they may very well find the need to do so someday. Unfortunately, when they do, they’re very likely to be outgunned and outmanned against an experienced team of highly-paid attorneys hired to make the inventor go away. That’s exactly the sort of situation that creates a chilling effect on innovation—what creative person would want to become an inventor, to start a business based on his inventions, only to deal with that?
Last month, my organization, along with a diverse group of American inventors—representing everyone from the creator of the “Onion Goggles” to inventors of medical devices—flew in to Washington to call attention to the issues in the Senate’s patent reform proposals, nearly all of which would increase the burden on inventors seeking to enforce their patent rights. We flew in on little notice because we learned that Congress was working at a lightning-fast pace to pass legislation. In contrast to the last patent bill, which spent six years in Congress, this legislation passed the House within weeks, and has moved through the Senate with similar speed.
Given that the America Invents Act was fully implemented less than a year ago, it’s even more important to act in a deliberate, thoughtful manner here: our patent system has yet to be fully understood or appreciated. Certainly, any attempts to alter the current system should be done with care to avoid unintended consequences that would harm inventors and entrepreneurs.
The real question is, what is Congress doing? Why are they acting with such speed and seeming recklessness to pass legislation that will harm the very people we say are the best of America? Even more importantly, why aren't independent inventors and universities being included in the legislative process and asked how this bill will impact them? It certainly can't be because they are unable to find us.
Independent inventors are not obstructionists, nor do we plan to chain ourselves to the steps of the Senate office building. We simply want to be part of the discussion and make sure that we are not the collateral damage from a rushed and not-so-well-thought-out legislative process.
With Congress now back in session, the Senate Judiciary Committee is soon expected to mark up the legislation that could either save the American inventor—or seriously discourage innovation and harm our economy. For American innovation to continue to thrive, we must have a strong patent system that encourages innovation, attracts investors, grows our economy and creates good jobs. Here’s hoping the voices of America’s innovators are heard in this debate, before it’s too late and too much damage is done.
Foreman is an inventor, the CEO of Edison Nation and the creator of the PBS show "Everyday Edisons."