The Corporate War On Ingenuity by Rep. Dana Rohrabacher
As Published on RealClearMarkets.com
Unbeknownst to most Americans, over the past quarter-century a stealth, but also brazen, campaign has been staged to weaken constitutional protections of their fundamental right to invent and enjoy the fruits of their applied imagination. The insidious effort is being conducted in the deceptive name of "patent reform."
As summer recess approaches, the Senate Judiciary Committee deliberates over the latest iteration of patent neutering, which is what it should be called, the House of Representatives having passed its own version this past winter. This poses a grave threat to America's ingenuity. Can you imagine these jaw-stroking solons taking up "reform" of the First Amendment?
Such a comparison is apt, because the framers thought enough of the protection of intellectual property that they inserted it into the body of the Constitution, not as a debatable, afterthought amendment. The high legal value placed on Americans' creativity distinguishes our regard for intellectual property rights from other countries' much weaker acknowledgements of them.
Such ironclad constitutional protections yielded us our competitive edge in science and technology. For two centuries our patent system protected inventors and was the envy of the world.
And yet, the so-called patent reformers, doing the bidding of multinational corporations, seek to harmonize our patent system with European and Japanese standards. Global standards, of course, can and do facilitate trade, but in this instance standardization means vastly weaker protections for our own inventors. And it gives big-budgeted firms virtual license to steal ideas from the individual geniuses among us.
This fight has been going on for decades. Each attempt has pitted American Davids against corporate Goliaths. This year's "Patent Transparency and Improvement Act" is a monstrous misnomer. It's a power play by the most formidable foes imaginable against individual inventors. And, like every other time, a menacing bogeyman in need of taming (or slaying) has been manufactured - as if Goliath were feigning fear of the boy with the slingshot.
One year the corporate image-makers created the "submarine patent" that would, somehow, torpedo American ingenuity unless legislators dropped a depth charge. Then came "patent pirates" - perhaps cast overboard because Disney morphed pirates into winsome characters. Lately the ugly descriptor "patent troll" - as if inventor-eating creatures lurked under every bridge - was sent out from the competition-fearing boardrooms to scare us into submission.
The legislation treats all inventors as if they were scam artists. The terms "troll," "patent assertion entity," and "non-practicing entity" are lumped together as if it were evil and wrong for someone to exercise property rights. If an inventor doesn't build his invention or license it to others, that is the inventor's choice. That is not an evil choice. It doesn't make the inventor unworthy of the right in the first place.
The solution to fixing the "patent troll" problem should be obvious: Make it much simpler, cheaper, and easier to defend against a claim of infringement. This legislation might take small steps in that direction, but it also takes giant leaps in the opposite direction, making it even more complicated, costly, and risky to file an infringement claim.
Talk about unintended consequences! This will increase patent infringement and reduce legal remedies for those infringed.
It gets worse. Transparency of patent ownership, called for in the Senate bill, requires full disclosure of anyone with a "financial interest" in a patent once a claim of infringement has been filed. So anyone who has invested in a company with an infringed patent will be exposed to potential lawsuits and financial claims, a major disincentive to invest.
The Senate bill should really be labeled the "Steal America's Technologies Act," given the inevitable impact on our inventors. But the effort is nothing new. Over the years I and my colleague from across the aisle, Rep. Marcy Kaptur, have mounted what felt like a herculean effort to set up a defensive line around our inventors. Each time the powerful high-tech companies responded with overwhelming force.
Google itself mobilized to push through Congress any number of anti-invention bills - hitting small inventors amidships. But there is significant recoil, too.
Across the country university presidents, minding their critical patent portfolios, and research-oriented professors are waking up to the huge costs at stake if corporations can simply steal an academically generated idea and defy their victims to fight for it in court. The "patent reform" measure now contemplated by senators perversely tilts the playing field against educational institutions.
That's an awfully uncomfortable place for a senator, who may also be contemplating re-election, to be in the weeks ahead. It's what gives me hope that opposition to this power grab by the corporate class may finally triumph.