With congressional Republicans back from their spring recess, presumably revived and resolved to keep our country competitive, there is one more thing they should do to gird up for the resumption of legislative business.
They should take a contemplative stroll down the National Mall.
Only steps away from their offices, they can escape into the National Gallery of Art, there to absorb how individual creative artists—those harbingers of intellectual property rights—have gone about building a humane civilization from antiquity to the present.
In addition, members most definitely should spend thoughtful moments in the Smithsonian’s popular Air and Space Museum, to impress on their minds the common denominator of all American innovation, the envy of the world: our patent system. There would be no such Space Age exhibits without patents.
Finishing their power walk on the Mall, they could take a lingering look at the museum of African-American history under construction, where surely will be celebrated minority inventors, whose everyday products, from peanut butter to beauty treatments, were empowered by—why, yes—our patent system.
That precious system is once again under attack. For years, decades even, mega- and multinational corporations, nothing if not anticompetitive, have sought “reforms” that would yield to them the fruits of small inventors’ work. Their image-makers create monsters to slay. One session, years ago, it was holders of “submarine patents.” This time it’s “patent trolls.”
To wrap the matter up in a neat but unreadable package sellable to Republicans, they present it also as “tort reform,” and what good free-enterprise-championing Republican wouldn’t vote for that? Alas, in last year’s House session, the GOP majority reflexively sent the bogus reformers’ current iteration, bearing the Orwellian title the Innovation Act, on to the Senate, where it mercifully stalled.
This year it’s back, ramrodded by its chief sponsor, House Judiciary Committee chairman Bob Goodlatte. The Virginian, an otherwise impeccable conservative, hasn’t gotten the message that Republicans finally are coming around to an understanding that pushing crony capitalism does not a free enterpriser make.
Rumors abound as to why Goodlatte brooks little substantive debate on the issue, including family ties to Silicon Valley, but suffice it to accept that big business and establishment Republicanism can’t easily be unjoined. Now that Google and other pushers of the Innovation Act virtually occupy the Oval Office, where President Obama sits ready to sign it, there really is no excuse.
This may sound heretical to lockstep conservative legislators, but among those who do get how Goodlatte’s legislative mischief harms actual innovation are members of the black caucus, who see the sanctity of individual inventors as a breakthrough for minority entrepreneurship; Ohio Democrat Rep. Marcy Kaptur, a small-business enthusiast; and—welcome to the party!—Delaware Democrat Sen. Chris Coons, who has introduced a much superior bill.
True to free-market principles, some House Republicans like Kentucky’s Tom Massie, a Tea Partier and himself an inventor and multiple patent holder, have been trying desperately to stop the Goodlatte measure’s progress. Carly Fiorina, the Silicon Valley defector who now runs the American Conservative Union Foundation as she seeks the GOP presidential bid, has spoken out against it. She brings an insider’s knowledge of how top corporations work Washington to their advantage.
While opportunities for exemplary bipartisanship present themselves, it does take patience and discernment for members of Congress and their staffs to find the bill’s poisonous elements.
Goodlatte’s language, for example, seems to address some of the headaches that accompany patent disputes. Take those nettlesome demand letters. The bill calls for more specificity but in doing so, ironically, forces small inventors to disclose in them more proprietary information than healthy competition dictates. It actually removes protection for intellectual property rights.
It gets worse in pretrial discovery, wherein guarded secrets become unguarded, then adds insult by imposing higher legal expenses on small inventors, the assumption being that patent challenges landing on a corporation’s doorstep must, by definition and inference, have been initiated by litigious “trolls.”
Memo to GOP: Not all litigation is bad litigation. Whereas it can be costly—and forests have been cut down to publish op-eds and institutional ads saying so—the number of meritless cases pushed by small inventors against voracious companies has been negligible.
If anything, recent history shows the process in reverse, whereby corporations’ legal teams cleverly target small inventors, who have no such counsel on either retainer or payroll. Moreover, Goodlatte would require disclosure of interested parties, by which is meant investors in inventors. This is how we discourage the flow of capital into innovation, making our economy steadily less competitive at home and abroad.
Academia is coming late to awareness of this gargantuan threat to university portfolios. Here and there a college president notices, with some prompting, that an institution’s patents, an essential source of revenue, will come under siege once the president signs this bill. The looming legal assault adds one more siren to multiple pressures on, for instance, tuition rates.
Can academic administrators team with small inventors, many connected to their research faculties, along with the growing bipartisan resistance to the Goodlatte steamroller? We may hope.
The single biggest and most consistent problem with our patent proc-ess is the delay between an inventor’s applying for a patent and receiving a ruling from the U.S. Patent and Trademark Office. More than one million patent applications sit in limbo, waiting for judgment. More than 600,000 applications have yet to see any action from the patent office.
Ranking member John Conyers has been proposing a solution for years: Allow the patent office to retain the fees it collects and use them to fund enough examiners to eliminate the backlog of patent applications. Coons has included this provision in the bill he introduced earlier this year.
Goodlatte’s bill does nothing to alleviate this problem. It appears far more important to him to protect the large corporation from the small inventor than to make certain the patent office is funded adequately to perform its constitutionally mandated job.
Some breathing space did seem to come when Senator Coons—nobody’s idea of an ideological conservative, and yet a welcome respecter of markets—entered the picture with a corrective. Still, time will run out, a blow to free enterprise and innovation accomplished—with Republican help, no less—unless a jaw-slapping awakening occurs across Capitol Hill. Or perhaps that Mall walk-induced epiphany will do the trick.
In the weeks ahead, we may expect the moneyed corporations, Google foremost, to pour untold treasure into the campaign to complete this coup. Corporate socialism, already consuming so much of the economy, will have sealed the deal.
Identifying corporate socialism, aka crony capitalism, as the enemy of American freedom and innovation has risen to the top of the Republicans’ Tea Party-freshened agenda. The Goodlatte bill would make a lie of that.
Time to take that walk down the Mall, breathe deeply, actually read the bill, and get down to business.
David Oppenheimer is a Hoover Institution contributor and a science policy fellow at the Policy Studies Organization.
K. E. Grubbs Jr. is a writer in Washington.
