The 47-year-serving Democratic senator from Vermont, Patrick Leahy, is finishing his marathon tenure with a patent reform bill.
It should be called “The America Hates Inventors Act.” The problem for inventors is that Congress and the Biden administration are dealing with a floundering economy. That puts pressure on them to do something — and innovators are a minority that politicians enjoy attacking. Unfortunately, while Congress can brag about changes to the patent system, the effects of running over inventor rights won’t show up in the economy for several elections after the changes are made. That means legislators can make changes now, even if they might tank our nation’s economy in the future, and never pay the price.
It’s a recipe for public policy failure.
A hearing on the Leahy bill in early June turned into more political theater. Nevertheless, Sen. Ted Cruz (R-TX) did rightly note a moral concern. As he put it, “I have some concerns when those rights which often amount to a person’s livelihood can be stripped away by unaccountable bureaucrats not elected or appointed by the president nor confirmed by Congress.”
Indeed. The problem with Leahy’s bill is that it makes the Patent Trial and Appeal Board even stronger than it currently is. The bill is “basically a wish list of patent-killers seeking to cancel patent rights via inter partes review,” according to the law blog Patently-O.
PTAB was created by the America Invents Act to be a cheaper and faster patent court, but because of a lack of rules and clear procedures, it has been panned by everyone except patent infringers since then. In one case, when the board didn’t rule in favor of the infringer, the director of the United States Patent and Trademark Office added other board members. When, again, the vote didn’t go her way, she added another member. Eventually the inventor’s patent was taken away.
Leahy’s bill would create more patent challenges, encourage multiple avenues of challenges, expand what the PTAB examines in patent challenges, and make this kangaroo court available to government agencies. The Leahy bill is objectively bad for a country that prides itself on innovation. But Leahy is retiring, and now, there is talk about adding this bad bill to the National Defense Authorization Act, which is a must-pass bill that Congress will consider very soon.
We need to be vigilant. A parting gift for a retiring senator should be a bottle of scotch — not a wish list for sabotaging the economy. There are so many better options available.
The founders included patents in the Constitution for a reason, and that inclusion has paid off over the past several centuries. We should be looking at bills that help promote innovation, bills that give us an advantage over China. These opportunities exist. Rep. Thomas Massie (R-KY) has a bill that would help inventors instead of hurt them. Sen. Chris Coons (D-DE) has a bill that he has been working on for many years that would also make things better for inventors.
Top line: Inventors don’t need assistance — they just need Congress to stop passing bills that make inventing even harder.
Charles Sauer (@CharlesSauer) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the president of the Market Institute.
