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.