The current patent "reform" measures before Congress have powerful supporters in the high tech, financial services and information technology sectors. One organization, the Coalition for Patent Fairness (CPF), says that it will lobby members of Congress to promote passage of this proposed legislation.
On its website, the CPF states that its pursuit of reform is, in part, in an effort toward "protecting consumers". Yet it is innovation that benefits the consumer. Insulin, PET/CT scans, Restasis®, Taxol and many other discoveries have come from university research and independent invention. Upon closer examination of the coalition's membership roster, it is immediately evident that the nation's top large businesses are listed (Microsoft, RIM, VeriSign, etc) but noticeably absent are any organizations that represent faculty scientists, academic institutions or independent inventors.
Colleges, universities and the workshops of the independent inventor are all a hotbed of innovation that fuels the U.S. economy and improves the lives of its citizens. Much of the research of inventors working in these environments is promulgated by small business, entrepreneurs or start-ups underwritten by venture capital funding. Small business employs a majority of U.S. workers and is an invaluable contributor the GNP.
Yet nowhere in the proposed patent litigation are the interests of these innovators represented or protected. There are three main areas of concern for the academic and independent innovators within the reform legislation are:
- Change to a "first-to-file" system
- Expanded administrative patent review
- Limitation on patent infringement damages
America is a nation of inventors. The "first to invent" system is a differentiator among the international intellectual property system that allows the U.S. to remain a world leader based on the intellectual property of individuals, innovating in the university laboratory and garage workshops. Changing to a "first to file" system will unduly hamper the ability of individual thinkers to protect their innovations.
The U.S.'s adherence to the first to invent system has been labeled "arcane". However, the patent system is only as arcane as its provenance: the U.S. Constitution. Here, too, our nation differs from the rest of the world by its system of government and guaranteed rights of its citizens to freedom and protection of property (intellectual and otherwise). It is our differences that make us great as a nation and as a citizenry.
The expanded administrative patent review window proposed by the reform measures will benefit larger companies who have the financing to challenge patents versus smaller patent holders who may lack the financial wherewithal to defend their intellectual property. In Europe, where this policy is already in effect, there is a trend for large companies to abuse the administrative review process. With evidence showing this measure as counterintuitive, why is it still part and parcel to the proposed reforms?
As to limiting damages on patent infringement cases, small firms are more likely to litigate to protect their patents and large business is typically on the defense. A prime deterrent to willful infringement is the prospect of substantial damages, treble in fact. This change would be an open invitation for big business to infringe on the intellectual property rights of faculty and independent inventors, many operating small business and start-ups to advance their innovations.
There are no provisions of the proposed reforms to the patent system that benefit or even treat equitably faculty scientists and individual inventors. Instead, lobbyists for big business, high tech, financial and IT industries hope to irretrievably tip the scales in favor of those with the power and resources to influence a nation of lawmakers. This in now way will serve the American public or benefit consumers. Our systemically flawed patent system needs reform, but not all change is good change.