Stepping Back from the Cliff: The Year Congress Didn’t Cave to the Anti-Patent Lobby

By Paul Morinville & Gene Quinn
December 28, 2016

Businessman cliffFor a many years, the pied pipers of the anti-patent lobby whistled the patent troll melody and Congress, desperately in need of a glorious bipartisan victory, pushed and ultimately passed inventor killing legislation horribly misnamed as the America Invents Act of 2011 (AIA). To be more correct, the America Invents Act has thwarted American innovation at the grass roots level. Thanks to the creation of the Patent Trial and Appeal Board (PTAB) and three new mechanisms for efficient infringers (i.e., large companies who steal patents) to strip patents away from inventors after having toiled, struggled and suffered to finally convince a patent examiner to issue the patent after many years, perhaps decades, of back and forth negotiations. Indeed, the AIA has thrown a wet blanket on grass roots American innovation by starving inventors from capital by driving investors out to safer investments, or increasingly to innovation based start-ups in other parts of the world, such as Europe and China.

There is no doubt about it; the AIA has grass roots innovation in America on life support. What is tragic is that this was predicted, but few leaders in Washington, DC stopped long enough to look both ways before acting. It is no wonder they didn’t notice that they were standing on the edge of a cliff and about to gleefully run forward one by one like a bunch of lemmings. And this happened all in the name of bipartisanship? Why can’t patent policy be like everything else where there is hopeless gridlock between Republicans and Democrats and nothing ever gets done? That would have been a substantial improvement over the last decade compared to what we have now.

The real consequences of the damage began to emerge in 2015. But 2016 represented a sobering up of the patent reform debate as metrics on the effects of AIA created PTAB procedures and other seriously flawed court decisions laid bare the damage caused to America’s innovation engine.

The truth is innovation happens at the grass roots level because innovation happens when risk is taken and the larger a company gets the more risk averse decision-making becomes. Furthermore, as companies grow so too do bureaucratic layers of red tape, which make it more difficult to green light even the best projects. For these reasons and others, most innovation comes from small entities and individuals. That is why so many large corporations so frequently buy up much smaller competitors, because of their innovation.

But the America Invents Act has been a wholesale wipeout of small inventors and new technology startups, right at the grass roots level, which is certainly not what the good citizens of America sent them to Washington to accomplish.

So now, five short years since the America Invents Act was passed, Congress has taken off their blinders and is stopped, suspicious, and cautiously looking for solutions where there is a true industry consensus. This newfound caution slowed down the House enough to see the damage coming from the Innovation Act despite hard and aggressive anti-patent lobbying by Google and other consumer internet multinationals and retailers who benefit from weak patent protection. These technology users do not innovate, but rather they take the innovation of others and use them in commerce for their own benefit while giving the true inventor nothing in return. The House, skeptical this time around, did not mindlessly run over the cliff. They waited and watched and listened, and the total collapse of American innovation was averted by effectively killing the Innovation Act through inaction.

The Innovation Act actually died in 2015 in the House. By the end of that year, the anti-inventor lobby was already trying to disassemble it and pass it in parts. But the Senate bill, the PATENT Act, was still kicking in January of 2016.

The most salient moment of 2016 was the silence emitting from the Senate Judiciary Committee after January. In February, the PATENT Act went silent and remained silent for the rest of the year. It seems that Senator Grassley, the Chairman of the Senate Judiciary Committee, decided to pull it off the burner without really saying he had done so. It just got quiet and slipped away.

Perhaps Senator Grassley’s hand was forced when the House stopping at the curb to look both ways. Or perhaps Grassley saw the cliff and decided to take a step back. Perhaps his staff just couldn’t find Iowans affected by patent trolls despite their best efforts to locate tear-jerking stories. Maybe Grassley listened to Iowa inventors discussing the effects of patent reform at his town hall meetings and learned about how the patent system really works to drive capital to startups and create new jobs in Iowa and around the country. Whatever the case may be, the PATENT Act was not forcefully pushed in the Senate and without any press release or announcement from Capitol Hill patent reform died for the 114th Congress.

For whatever reason, 2016 represented the year that Congress itself, or at least enough Members of Congress, got serious about considering the negative effects of pandering to the anti-patent lobby. Those effects are now clear and the stage is set to turn it back. Of course, we can anticipate there will be new pushes for patent reform in 2017 and beyond. Perhaps some of those attempts at patent reform will be from the pro-patent side, but we need to remain vigilant because the anti-patent lobby has not and will not go away.

 

The Author

Paul Morinville

Paul Morinville is Managing Director of US Inventor, Inc., which is an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups. Paul has been walking the halls of Congress knocking on doors and sitting down with hundreds of offices to explain the damage suffered by inventors due to patent reforms. Paul is an independent inventor with dozens of patents and pending patent applications in enterprise software. He is also CEO of OrgStructure, LLC, an early stage enterprise middleware provider in Northwest Indiana.

Paul Morinville

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 17 Comments comments.

  1. Night Writer December 28, 2016 5:58 am

    >>The truth is innovation happens at the grass roots level because innovation happens when risk is taken and the larger a company gets the more risk averse decision-making becomes.

    I have years of experience in internal start-ups for large corporations and years of experience with real start-ups. I think without patents innovation will not die, but be about 1/10 what it is now.

    My guess is that Trump will not be a friend to patents and could be the killing blow. Why? Trump doesn’t understand structure, but understands saying to big corporations what do you need to do well. Their answer from the round table includes killing patents. If not for pharma, patents would be gone now.

    To my mind, the reason the anti-patent movement lost some momentum was pharma coupled with the fact that it was becoming obvious that they weren’t hurting from the current situation. Besides, they got the trade secret act which may end up helping them more. That was their big push. They need that in place so when they kill patents, they can easily move to trade secrets.

  2. Night Writer December 28, 2016 6:15 am

    As to Trump, I have not seen any analogous thing in Trump that would make me believe that he would understand or support patents. They seem to be the type of thing that Trump would not understand and in his greed the type of thing that he would consider an annoyance. Maybe the only hope is that he will see-through Google as a large monopoly that is only interesting in feeding itself. So, he may figure out that they are likely misrepresenting the situation.

    Still, again–not one analogous thing like patents that Trump gets and supports. I hope I am wrong, but I get the feeling that we may be in for a disaster. It could be big. Really big. I mean something that is really, really big. Bad big. But, big.

  3. step back December 28, 2016 7:42 am

    The sentiment one sees among politicians as well as among the judiciary and lay public is that invention and innovation (not the same thing) are inevitable.

    Every year sees the release of the next numbered iPhone, the next Apple and Microsoft operating system, bigger and higher resolution TV sets and new miracle pills from Big Pharma.

    If you have an “idea” for a new product, just go to a Silicon Valley coffee shop, find a 2nd year engineering student (or 3rd year if your idea is really really big), reveal it on Friday and by Monday it will done.

    Why the fuss? Who needs patents?
    The market and the engineers will provide.
    / end sarcasm

    https://patentu.blogspot.com/2016/08/sciam-editors-decry-anti-amsci-politics.html

  4. EG December 28, 2016 9:19 am

    “Congress, desperately in need of a glorious bipartisan victory, pushed and ultimately passed inventor killing legislation horribly misnamed as the America Invents Act of 2011 (AIA).”

    Hey Paul,

    Completely agree that the AIA is “horribly misnamed.” I always refer to the AIA as the Abominable Inane Act.

  5. Night Writer December 28, 2016 10:07 am

    @3: step back: Biggest problem: Google pays for the best marketing people to keep banging on this theme year in and year out…

  6. Night Writer December 28, 2016 10:19 am

    Still, my friends, can you come up with one thing like patents that Trump “gets”?

  7. Night Writer December 28, 2016 10:30 am

    Sorry for all the posts: The biggest thing that Trump needs to get is that Google doesn’t care about the rate of innovation only that they can use whatever is innovated immediately with no fees.

  8. Adrian December 28, 2016 1:15 pm

    I believe a grass roots movement of innovators and inventors thru the existing network of clubs and groups to demand the repeal or amendment of the AIA is needed right now.
    Trump gets capitalism and MAGA requires inventor friendly patent laws.
    Is there an independent inventor representative talking to Trumps people to emphasize this connection?

  9. IPdude December 28, 2016 9:08 pm

    I’m hoping for the best but we simply don’t have a big enough lobby supporting patent rights. Really surprised at how big pharma went along with AIA – probably promised big incentives under Obama care (didn’t pan out for them) – and now they’re screwed too. If pharma, with their gigantic market cap, can’t lobby for patent rights, it’s pretty much over.

  10. step back December 29, 2016 12:34 am

    IPdude,

    America needs another Sputnik moment before it wakes up.
    Maybe it will be the Chinese this time who announce a tech milestone which makes the USA look less than ‘exceptional’. Then our jingoistic nature will kick in and we will say, Hey that can’t be right that their inventors are better than ours! We need more STEM! We need a patents MOONSHOT! Reform, reform, reform. After that we go back to sleep again. (Or maybe this time we don’t wake up until it is too late. All the inventors will have left and nobody remembered to shut the lights off at the USPTO)

  11. angry dude December 29, 2016 1:04 am

    The real “Pied Pipers” of SillyCon Valley (HBO’s sitcom closely reproducing the ugly reality of stealing technology by large corps) would rather benefit from strong patent protection which would prevent hoolies (aka googles) of the world from reverse-engineering (aka stealing) their ground-breaking proprietary algorithms.

    At the very least they would be able to sue hooli for patent infringement (as opposed to be sued by hooli) and sleep in their own little houses with their girlfriends/wifes (as opposed to sharing stinking incubator house space including garage (!) with 20 other smelly unattractive male dudes)

    “Pied Pipers” of the World Unite !

  12. angry dude December 29, 2016 1:29 am

    Night Writer @1

    Why is it so difficult for Trump to realize that capitalistic “dog-eat-dog” society can’t produce any real invention on its own (as opposed to google’s “innovation”) without massive taxpayer-bankrolled financing or government-policed patent enforcement system ??

    btw Sputnik was created on the backs of 100 million slaves in the former Soviet Union and the US response to it was bankrolled by US taxpayers in the astronomical amounts…

  13. Night Writer December 29, 2016 5:54 am

    @12 angry dude: To Trump, I am just saying that his pattern is like a Mark Cuban not a person that understands structure or things outside himself. Trump doesn’t like rules.

    Again, anything like patents that Trump has supported? Maybe the foreign infringers will help. Maybe. But, my worry is that he is going to listen to the round table of monopolies he hosted who all say burn the system down it is a threat to our market share.

    Also, I note that there is very poor analysis of the motives of Google and their actual innovative performance.

  14. jbavis December 29, 2016 12:41 pm

    Lots of comments on Trump. My concern is that in Trump’s rush to make headlines in bringing back jobs (Sprint’s 5000 jobs, Carrier 1000+ jobs, etc…), he may inadvertently listen too closely to what LARGE corporations need when in reality it is SMALL to MID size companies that create the bulk of the jobs. Has anyone seen any indication that Trump realizes this? Has he ever even talked about small entities? lots of talks about manufacturing plants but nothing about the small entities. He recognizes lost jobs as the problem but does he recognize that at least part of the reason is the weakening of the patent system?

    Trump wants big headlines – 5000 jobs here, 3000 jobs there, another 8000 here. While Obama outright didn’t believe in individuals (“you didn’t build that”) but the collective as a whole, Trump seems to go for the big sensational events. Neither understand that smaller entities create the jobs and that system, as a whole, has previously worked pretty good.

    Without understanding that small to mid size companies create the bulk of the jobs, why would Trump listen to the individual inventor who needs that patent to secure funding to build the product and create jobs? Trump doesn’t care about 1 or 2 or 5 jobs – it’s not the big sensational headline. But if one of his business associates part of a small company explained his/her need for obtaining a patent – Trump would almost certainly get it – but does he understand just how many inventors or individuals or small entities are out there that could definitely benefit from a strong patent system and thereby create hundreds of thousands of jobs on every year on their own?

    Will inventors pool together in large numbers to show that they could create hundreds of thousands of jobs?

    Does Trump understand that by instead of exerting countless effort talking to each individual big company, if instead he would simply strengthen the patent system he would create many more jobs and a more prosperous America? Trump’s approach so far is not scalable – however, strengthening the patent system is scalable and would last decades/generations.

    Trump criticizes Obama on his lack of job creation – and Obama destroyed the patent system – so wouldn’t simple logic dictate to at least look at doing the opposite of what Obama did? The old – “if what you’re doing isn’t working, sometimes doing the opposite isn’t a bad thing” – can strengthening the patent system makes things any worse?

  15. IPdude December 29, 2016 5:27 pm

    step back @10

    We are already seeing venture capital flowing into China as our system weakens. What’s disappointing is how well Google has marketed the “patent troll” campaign to SV startups. SV startup founders all think they are in this impregnable society and they have all the answers, so who needs patents because Google will acquire us because we are in Camelot. They subscribe to the propaganda pushed by shills like Techdirt insisting that everything should be open source. Then when they get ripped off by big brother without an acquisition, they’re too scared of being blackballed in their elite community so they shut their mouths and start another business they hope Google will acquire. When you can steal, you don’t need to buy. Just look at the post AIA acquisition numbers.

  16. Eric Mirabel December 30, 2016 9:03 am

    We need to convince Trump to “build a wall [of patents]” that no foreigners can breach

  17. staff January 2, 2017 2:19 pm

    ‘inventor killing legislation horribly misnamed as the America Invents Act of 2011’

    We fully agree.

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com