Patent Integrity: An Appeal to College Presidents

You’re a university president, it’s springtime, and among the jumble of pressing issues entrusted to you – not to mention all the onrushing commencement planning – is how your portfolio is faring in the second quarter.

That portfolio is critical to your campus’s finances, and a substantial portion of it contains various registered patents that the creative geniuses on your faculty have delivered. What you might not know is that in faraway Washington legislation is pending that will devalue this precious asset on which your institution relies.

A clique of multinational corporations is pushing legislation that will be a disaster for the rest of us, especially our universities with research components.

Yes, there has been a crying need for restructuring and improving America’s current patent system. There are some bad actors who find courtroom bonanzas at the expense of corporate shareholders. Yes, that happens. Congress, hearing about such unjustified milking of our system, wants to address that continuing vexation.

This malady is being used to cover a power grab by corporate interests.

One such phony solution is H.R.9, crafted in the House Judiciary Committee but for all appearances drafted by mega- and multinational corporations. Last year it passed the full House but stalled in the Senate.

Rep. Bob Goodlatte, the Judiciary Committee chairman, badly wants this victory, even if it subordinates the party of Lincoln’s small-enterprise legacy to the interests of big business. The Virginia Republican wants to bring H.R.9 to the floor quickly, perhaps as early as next week, the better to flummox the opposition.

Small inventors and their patrons in academia, however, are being asked to swallow large dosages of poison encapsulated in the bill. Two features are especially concerning: mandatory fee shifting and involuntary joinder.

Together and separately, they seriously weaken and put at risk the university technology transfer process, so necessary to America’s innovative and entrepreneurial way of life.

Universities must be able to license their patented inventions to private enterprise, which in turn distributes benefits throughout society. Consider the CT scan and MRIs, an array of vaccines, GPS, bar codes, Doppler radar, Web browsers – all licensed patents and indispensable to our social wellbeing. The Internet itself was propelled by a system whereby universities, under the Bayh-Dole Act of 1980, can license their patents for commercial use.

In 2013, universities in this country were issued more than 5,200 patents, their research leading to 818 start-up companies. The United States Patent and Trademark Office cannot keep up with this steadily increasing demand and desperately needs to retain filing fees for its own use.

H.R.9 does not address that pressing issue. Instead, it would require courts to award attorney fees and costs to winning parties. Of course, in any such cases, the advantage goes to well-financed corporate legal teams, not inventors and budget-constrained universities.

What the Goodlatte fee-shifting measure proposes amounts to a colossal deterrence to investors in your patents as well as to prospective licensees. Such a loss can only be made worse – far worse – by provisions calling for involuntary joinder. Under that noxious provision, universities and inventors would be forced to pay damages for actions of third parties beyond their control.

Any change in our basic patent law must be considered with the most sober analysis. This is not a moment for a power play by huge corporations that puts a university’s most creative minds at the mercy of slick corporate legal teams. H.R.9’s stealthy progress must be brought to a halt.

The Judiciary Committee’s ranking member, Rep. John Conyers of Michigan, has introduced alternative legislation to address the USPTO logjam. In the Senate, Democrat Chris Coons of Delaware, has introduced another.

These corrective measures deserve to be debated, and the academic community deserves to be heard, before Congress does irreversible damage to our historically reliable patent system. Last year the university community rallied and helped stop this travesty in the Senate.

It’s just one more thing demanding your attention. But without such high-minded mobilization, all the rest may not matter. America’s future of innovation depends on you.

With that mission accomplished, we may let the commencement season commence.

The Author

Congressman Dana Rohrabacher

Congressman Dana Rohrabacher represents California’s Forty-eighth Congressional District. He is a member of the Science, Space, and Technology Committee.

Official Website.

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Discuss this

There are currently 17 Comments comments.

  1. angry dude April 27, 2015 3:21 pm

    “Billionaires are people too … We are leaders in technology and industry. Look at history. Do you know who else vilified a tiny group of financiers and progressive thinkers called the Jews? … You could argue that billionaires are actually treated worse, and we didn’t even do anything wrong.”

    Gavin Belson, Hooli (aka Google) CEO (“Silicon Valley” Season 2 on HBO)

    Poor poor Silicon Valley big tech CEOs !
    They need this HR9 bill so badly – to protect their precious from evil ruthless peniless patent trolls like myself.
    Just give it to them already and close the shop (USPTO).
    Chinese will be happy too

  2. Richard Peterson April 27, 2015 7:16 pm

    Having practiced patent law in San Francisco for almost 50 years, HR9 is the death knell for the American patent system mandated by our Constitution. The paradigm shift from an award for disclosure of a new idea, to a high-risk franchising system that eliminates anyone but an international giant from the patent game.

    Free Americans will rue the day this happens. First, it was kill the equity court, then, abandon common sense.

  3. Night Writer April 28, 2015 11:30 am

    What strikes me about this is that it is never ending. I’ve been in patent law now for about 10 years. From the start the big corporations were clearly trying to reduce patents. The old timers told me not to worry that they have seen this before, but to me this is more like anti-trust law. The big corporations have their PR machines out and write checks every year to push anti-patent legislation. And, just like anti-trust they have the SCOTUS on their side. The SCOTUS always seems to buy the big corp squeels for change.

    Even if we win this battle, what hope is there with this never ending source of money pushing to make patents less and less valuable unless you are a billion dollar corporation. Already the AIA has made it that any small company or inventor is subject to about $500K in fees to defend against a post-grant procedure. That change is huge and tips the balance to anyone with more money.

    I guess my question to you Congressman is what path forward? How can we hope to keep this war up? We keep losing ground and they appear to be relentless. (My prediction is that patents will be essentially gone in 10 years from the US and will perhaps make a comeback in the 30 year time frame once the dire consequences of losing patents becomes apparent.)

  4. Night Writer April 28, 2015 11:33 am

    And just consider that Lee is from Google who clearly does not want patents. That Lee had essentially zero experience prosecuting patent application which is the main job of the USPTO. And consider that Obama has appointed more judges to the federal circuit with liberal arts backgrounds than science backgrounds. It is shameful.

  5. Night Writer April 28, 2015 12:10 pm

    After this sinking in a bit, I think a more directed question is how could we turn this all around to improve our patent system rather than trying to defeat bill after bill that is designed to undermine the patent system? Seems to me the problem is the nexus between innovation and patents is hard for people to understand. Also, I will note that patents are what have provided the ability of tech workers to change jobs.

  6. angry dude April 28, 2015 12:51 pm

    2Night Writer:

    “I will note that patents are what have provided the ability of tech workers to change jobs”

    interesting take – I thought they abolished slavery in this country long time ago 🙂

    Of course, without patents companies will require new employees sign draconian employment contracts – but those will be illegal in most states, CA including
    I suspect we might see a demise of SV pretty soon (looking forward to it)

  7. Night Writer April 28, 2015 1:26 pm

    >Of course, without patents companies will require new employees sign >draconian employment contracts – but those will be illegal in most states, CA >including

    It is not just a take but first hand experience from someone who worked at a high-tech startup in Boston in the early 1980’s. After patents, the work was made public and documented as property of the company so it made it so the companies couldn’t reasonably make you sign the employment agreements anymore. Just look to the early 1980’s if you want to see how it is going to become. Everything will be a secret. You will be fired and sued if you write a blog post that explains what you do. I could go on.

    Also, note angry dude that the proposed trade secret legislation would provide causes of action for Google against its employees in CA. The big corps are on that one.

  8. angry dude April 28, 2015 1:43 pm

    2Night Writer:

    “…the proposed trade secret legislation would provide causes of action for Google against its employees in CA. The big corps are on that one.”

    I believe Google can already do just that to its former employees, with or without cause..
    Just watch the latest episodes of “Silicon Valley” on HBO:
    This is how it’s gonna be – big corp Hooli (aka Google) stealing technology from former employee and then turning around and suing same employee for stealing Hooli’s tech
    I guess no more publishing or blogging or github for engineers or else…
    Dark Ages ahead…

  9. Night Writer April 28, 2015 2:57 pm

    >>Dark Ages ahead…

    People like me that were engineers in the early 1980’s know what the dark ages will be like. I signed a draconian employment agreement. I was told point blank not to tell anyone what we were doing or to post about it (back then it was bulletin boards that we used to share stuff on.)

    Not only that the employment agreement said for two years after I left I couldn’t work in the area that I was in for the company. That was typical.

    Everything was a secret and becoming more secretive.

  10. Night Writer April 28, 2015 3:21 pm

    I’d be interested in legislation that would pierce the veil on some of these bloggers. I have posted before links to articles about K street and paid bloggers. We can be sure that many bloggers for patents are paid to blog against patents.

  11. Anon April 28, 2015 9:58 pm

    Night Writer,

    I would not support piercing a veil on bloggers – even the onerous ones you are known to combat.

    Pseudonymous and anonymous writing has a deep and valued history.

    There are other controls possible to limit the nasty side effects of paid propaganda. For example, this site allows lee way, but if you abuse the lee way with false spin, either of facts or of law, then you are constrained quickly. If communication is encouraged that must deal accurately with facts and law, those wanting to spin propaganda are soon “outed” well enough for their deeds.

  12. Richard Peterson April 28, 2015 11:55 pm

    Of course, humans still go to bars in the Mission and misplace a next-gen prototype smart phone. Where was Siri saying, “Wait, wait for me?”

    Google is now on board with soliciting old (pre-AIA) patents, particularly those that shelter its billion dollar purchase of Motorola’s mobile wireless portfolio. Its anti-patent position has shifted to “I’ve got mine, I don’t want anyone including my faux rival Apple, to horn in on my trip to world domination.” Thus, as others have stated, the Dark Ages begin.

    Many of our politicians don’t get global warming. How are these anti-science lawmakers going to have any comprehension of American Constitutional patent law?

  13. Anon April 29, 2015 7:02 am

    Richard,

    Stirring the hornet’s nest with a “global warming” comment (ps, the PC term was changed to “Climate Change” quite a few years back now) will not be too effective for you wanting to get your point across.

    As for politicians, I am reminded of the fable of the frog and the scorpion crossing a stream…

    http://www.aesopfables.com/cgi/aesop1.cgi?4&TheScorpionandtheFrog

  14. Night Writer April 29, 2015 7:29 am

    Anon, I mean to pierce the veil from the other side. The people that are using money to pay bloggers would have to disclose what they are doing. I have no problem with anonymity for others.

  15. Anon April 29, 2015 9:01 am

    Night Writer,

    I recognized which side of the veil your post was in reference to; however, any piercing is – or can be – problematic as to the issue I have with such piercing.

    If you wish to require a total expenditure and a classification of efforts, I suppose that might be a decent compromise, but I would not call that a piercing to reach what I think (and I could be wrong on this point) you would like to see on the discussion boards. I think that you would like to see a disclaimer – per poster – that said poster is “a front” as it were (sorry for the emotive language), or a paid spokesman (with the actual spokesman identified). Mere corporate postings of “X” dollars used in “Y” means does not illuminate the individual posts that are nothing more than paid propaganda.

    I am not sure how you can reach a verifiable level of such honesty without breaching (and thus destroying) the very concept of pseduonymity and anonymity.

    I take (and have always taken) a different view.

    I treat the content of posts for their face value. Period.

    If a poster wants to use their own name, that is fine, but such posting earns no extra credit by being from a named source. I give no “name-recognition credit” per se. If it appears that a named source wants to use their name as a link to a body of work that they have also posted, then I will use my knowledge of that larger body of work as “fair game” in any current discussion. I think this only fair in that the person using their real name (or established pseudonym) desires to use the “cachet” of past views, that the full sum total of their views – both “good” and “bad” are put on the table as it were.

  16. Richard Peterson April 30, 2015 7:19 pm

    So, anon, If past President Jimmy Carter posted about the safety of nuclear power plants, you would give him no extra points because he is Jimmy Carter? (fair game excepted) Every other reader would be impressed.

  17. Anon May 1, 2015 7:43 am

    Richard,

    Do you subscribe to the “named authority” fallacy?

    If past President Jimmy Carter wanted to perform brain surgery on you, would you let him? The answer of “But he was a president and must know everything” is clearly not appropriate.