You have to give the enemies of patent reform credit: They do love to hide behind the idea that they’re defending the free market. To hear them tell it, in fact, they’re the only thing standing between America and a lawless jungle where Google and Apple can step on inventors with impunity and then laugh in their faces as the courts’ hands are tied.
This is utter hogwash, of course, and genuine conservatives should not be fooled. However, for the sake of some basic education on the subject, here are three of the least persuasive objections made by so-called “conservatives” to patent reform.
1. It’s a “Liberal” Idea
This one comes to us courtesy of the American Conservative Union, an otherwise reputable organization, but one which really should’ve stuck to planning next year’s CPAC when it comes to this issue. Their argument basically boils down to a reductio ad Obama. That is: Obama supports patent reform, therefore it must be a liberal idea.
Zach Graves of the R Street Institute already eviscerated this argument at some length, and some of his choicer passages deserve to be repeated here:
Patent reform enjoys a long tradition of intellectual support from a wide range of right-leaning think tanks and advocacy groups. Conservative and libertarian groups that have advocated for patent reform in one form or another includeAmericans for Tax Reform, the Heartland Institute, the Cato Institute, the Heritage Foundation, the
The American Conservative Union’s own scorecard ranks members sponsoring patent reform legislation among the most conservative in the nation. This includes members such as Sens. Mike Lee (R-Utah – 100 percent), Chuck Grassley (R-Iowa – 84 percent), John Cornyn (R-Texas – 93 percent) and Orrin Hatch (R-Utah – 89 percent); and Reps. Bob Goodlatte (R-Va. – 94 percent), Darrell Issa (R-Calif. – 89 percent), Jason Chaffetz (R-Utah – 92 percent), and Blake Farenthold (R-Texas – 80 percent), among others.
Graves also notes, and this bears repeating, that if patent reform were really such a left-wing idea, you would have expected it to pass the Senate while it was still controlled by Democrats. Yet the bill was blocked, not by conservatives, but by then-Sen. Majority Leader Harry Reid (D-NV) on the grounds that it would offend trial lawyers, who are some of the biggest profiteers from frivolous patent litigation, or patent trolling.
In addition, the industries that oppose reform are hardly conservative stalwarts. The pharmaceutical industry, for instance, arguably gave us Obamacare. And as to the university system, which opposes patent reform solely to pad its Presidents’ salaries, is practically a byword for socialist indoctrination in conservative circles. If these are the best defenders property rights has, then we are all in trouble. And speaking of property rights…
2. Patent reform would harm inventors
This canard has been repeated endlessly by numerous conservatives opposed to patent reform. However, it’s simply not true. The current incarnation of patent reform legislation – the Innovation Act, authored by Rep. Bob Goodlatte (R-VA) – is targeted solely at stopping litigation that harms innovation. For instance, the bill does not make acquiring a patent more costly, nor does it make challenging patents themselves easier. In fact, according to the Electronic Frontier Foundation, some provisions of the bill actually make it harder to challenge patents.
Moreover, the bill’s provision requiring that losers of patent lawsuits pay court costs specifically are targeted only at litigants who a court concludes filed lawsuits that were justified neither in fact, or in law. In other words, unless a judge is willing to throw your suit out in the strongest possible terms, you’re not on the hook for the legal fees. This insures that only people who file baseless lawsuits (which by definition would not include actual inventors) would be forced to pay for their own litigiousness. Good actors are completely unharmed by patent reform, which is probably why trial lawyers, university Presidents, and other people who produce nothing of value hate it.
3. There’s always a “better” bill
One of the common objections to the Innovation Act is that it’s too sweeping, with its opponents pushing any number of bills as alternative, including the Targeting Rogue and Opaque Letters (TROL) Act, and Chris Coons’ (D-DE) STRONG Patents Act. In both these cases, the argument is actually a smokescreen for inaction.
Start with the TROL Act, which like many Washington creations sounds good only until you realize it’s redundant and actually makes the situation worse. In theory, the bill is designed to crack down on abusive demand letters from patent trolls (IE letters that waste business’ time and money by demanding all sorts of documents related to patent suits). It proposes to do this by empowering the Federal Trade Commission (FTC) to target certain types of demand letters as abusive business practices. Again, sounds good on paper.
There’s just one problem: The FTC already has the power to crack down on patent trolls and is even in the process of doing so with regard to some of the worst offenders. What the TROL Act changes, however, is that it makes the FTC’s standard for what constitutes an “abusive” demand letter pre-empt the stricter definitions of abuse that some states use. Not only is this an attack on federalism (which, last I checked, was a conservative value), but it’s also an enlargement of federal power that should give conservative ample precedent for suspicion. Ask Arizona how Federal “pre-emption” on immigration turns out. Spoiler alert: It’s not a pretty picture. Small wonder, then, that the TROL Act gets some of its biggest support from people who spend the rest of their time lobbying against patent reform.
And as for Coons’ bill? Well, first of all, it’s hard not to note the irony of conservatives talking up a bill written by one of the most liberal members of the US Senate as a superior alternative to a bill written by one of the most conservative members of the House of Representatives. But let that pass. The fact is that Coons’ bill is virtually dead letter, as it has next to no support, and looks unlikely to gain any in either house anytime soon. In other words, if you hold out for Coons’ bill, you’re going to be holding out for a long time, and in the meantime, patent abuse will continue apace.
Most importantly, however, no bill passed out of Congress is ever perfect, and patent reform is no exception. Indeed, with the Innovation Act apparently off the table until after the August recess, it’s possible that it may fall short of what patent reform proponents would like to see in an ideal world when the dust settles and negotiation is done. But politics is the art of the possible, not the art of making the perfect the enemy of the good. As Ronald Reagan said, a 75 percent friend is not a 25 percent enemy, and the same logic applies to legislation. The current incarnation of patent reform, while it may end up with some flaws, is far more good than bad.
That is, unless you’re a patent troll. In which case, may I suggest you slink back under your Bridge to Nowhere and leave the rest of us to get on with the business of inventing.