The new Republican Senate majority will soon be put to a test that is empty-headed and almost entirely the product of the mainstream media and its subsidiary, the polling industry: Can it “get things done?”
But there are some “things” that shouldn’t be done, even if they can be. One effort to garner bipartisan support that might soon make its way to the Senate floor is so-called patent reform.
As print, broadcast and Internet journalism continue their declines into little more than a source of simplistic sound bites and catch phrases, the public interest is being robbed of its most effective defender. Patent reform is complex, murky and legalistic. Average citizens cannot necessarily grasp its nuances easily.
“Harmonizing” the United States’ system of intellectual property protection with the standards of the rest of the world sounds perfectly reasonable. But what the proponents fail to mention, and the media fails to report is that harmonizing our patent system with that of other nations really means weakening our protections for inventors to a level compatible with countries that have inferior patent protections.
The framers of our Constitution thought intellectual property protection an important enough part of property rights that it was enshrined in Article 1 Section 8 of the Constitution. Patent protections are one of the most fundamental aspects of property rights. Strong patent rights encourage investment and innovation — leading to economic growth and job creation.
Conservatives who revere the Constitution ought to lead the charge in defense of property rights, not participate in efforts to weaken them under the beguiling attraction of showing that they can “get things done.” Senate Republicans should resist the temptation to weaken our patent protection system.
Strong patent and IP protections are what set the U.S. apart from nations like China and India, where IP theft is widespread. Why would we would want to replicate their patent protection systems?
In the wake of the cumbersome and anti-productive government overhauls of our healthcare system and our banking system, the last thing we need is to rush into another Washington-led overhaul of another sector of our economy. Yet that is exactly what proponents of current patent reform proposals want to do. Rather than simply address some specific and legitimate concerns about “patent trolls” — litigious abusers of the system analogous to ambulance chasers — these proposals would weaken the entire patent system.
The notion of a patent litigation explosion is largely a myth anyway, as many experts have pointed out. A recent study from the Lex Machina research organization shows patent case filings in September 2014 are down 40 percent from September 2013. Over the last two decades, patent litigation has been very steady at about 2 percent of all patents granted. Opportunistic threats of legal actions that are intended primarily to intimidate, not to redress wrongs, can be thwarted with tightly-focused reform legislation. The current patent overhaul proposals do not distinguish between so-called trolls and legitimate patent holders. Some proposals like the TROL-Act specifically target patent trolls, but that doesn’t go far enough for Google and others who want to fundamentally weaken patent protections across the board — to benefit their bottom line.
Supporters of this latest round of patent-weakening reforms have tried to portray it as a kind of tort reform. But what’s proposed is not tort reform at all. A number of legal experts have pointed out that it would strengthen the rights of infringers, while allowing them to tie up inventors in expensive legal battles that would devalue patents and weaken property rights and in turn increase litigation. There is just no case for a wholesale restructuring that would undermine our intellectual property protections and negatively affect our innovation economy.
President Obama has called patent reform one of his major legislative priorities. Companies like Google, who would benefit from weakening our patent system, have lobbied the Congress and the administration hard for this legislation. Passing a needlessly expansive patent reform bill to benefit the bottom line of companies like Google would be a terribly example of the crony capitalism that defenders of free markets decry. Conservatives should not help move a bill that would harm individual innovators, entrepreneurs and small businesses.
Colin A. Hanna is President of Let Freedom Ring USA, Inc., a non-profit public policy organization committed to promoting Constitutional government, free enterprise and traditional values. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
