Major players in the U.S. economy are divided on what, if any, is the best method of patent "reform" to solve the current system plagued by litigation and controversy. Lobbyists for industries with a stake in reform are applying pressure to lawmakers and have invested vast sums over the last few years to quell attempts at reform that do not meet its needs. With a variety of parties keenly interested in the outcome, IP Advocate wonders if best practices can supercede special interest in achieving needed reform in both corporate and university innovation.
Similar in nature and scope to the failed 2007 and 2005 bills, the 2009 bills currently under consideration by both houses of Congress may be destined for failure as well. On one side of the debate are the information technologies and electronics industries, and on the other side are the pharmaceutical and environmental industries. One side seeks stronger patents, and the other seems to seek weaker ones. Meanwhile academic researchers and independent inventors lack the funds to effectively lobby and influence the dialogue.
Harvard Business School professor Dr. Josh Lerner said, "I see it as a cold war between pharmaceuticals and the IT industry."
Big pharma and IT may be the super-powers in this debate, but if either side prevails in getting all that they want, the collateral damage to the patent system will impact all industries, educational institutions and innovators.
The current bill proposes to address the number of patent related lawsuits by limiting damages that can be awarded for infringement. The bills also suggests a change from the "first to invent" system to "first to file" system utilized internationally.
Many opponents of the bill do want reform, but feel that the proposed legislation does not address the most critical flaws in the system. One prominent critic is Intel CEO Andrew Grove who sparked controversy in a speech at the National Inventors Hall of Fame on May 2nd, 2009 when he said, "The U.S. patent system suffers from the same kind of flaws that brought about the global financial crisis."
After citing Thomas Jefferson's quote "The true value of an invention is its usefulness to the pubic", Grove voiced his belief that the U.S. system has moved away from the Jeffersonian ideal and added "Patents themselves have become products. They're instruments of investment traded on a separate market, often by speculators motivated by the highest financial return on their investment."
On the other side of the fence, big pharma is making strategic alliances. PILMA (Pharmaceutical Industry Labor-Management Association) has secured the support of the nation's largest union AFL-CIO. The union's Executive Council adopted a resolution opposing patent "reform" in the Senate that cites continuing concerns over the details of the bill and announcing it is "ironic" that Congress would consider changes that "undermine the effectiveness of our patent protections… when our nation is pressing China to upgrade its protection of intellectual property and to expand the rule of law."
While the strong patent protection advocated by the pharmaceutical industry would be beneficial to academic and individual inventors, the activities of patent trolls, a concern of the IT industry, is also worrisome to all. What neither side seems to acknowledge however, is the importance of preserving the incentive to innovate through better protections for inventors. Without safeguards that defend innovation, these industries could have fewer patents to concern themselves with altogether.
The bottom line is that with lobbying dollars by these opposing factions nearing the billion dollar mark, the end result may well be status quo and the failure of reform to address a system woefully in need of change and no parties resulting better off.