Patent Reform at all Costs: Desperate reformer resorts to lies

By Gene Quinn
February 9, 2016

liesYesterday The Hill published an op-ed written by Timothy Lee, who is senior vice president of Legal and Public Affairs at the Center for Individual Freedom, a group that according to Lee “most strongly” supports patent reform, specifically the Innovation Act.

The title of Lee’s editorial sets the tone from the start – Opponents of patent litigation reform never offer specifics. The only problem with the title, and Lee’s overall thesis, is that he is hopelessly wrong. I guess if you make the lie big and keep repeating it eventually people will believe it, or at least that is what proponents of patent reform hope.

Generally I tend to believe incompetence as an explanation when it can equally explain actions as well as some form of malicious intent. Although I don’t know him, I doubt Lee is incompetent. Yes, it is true that generally speaking people are far more likely to be incompetent than malicious, but incompetence in what is clearly a piece of carefully worded propaganda does not ring true. Thus, the inescapable conclusion seems to be that Lee either he has such utter disdain for the truth that his careless disregard for veracity asymptotically approaches a lie, or he is engaging in a purposeful misinformation campaign as part of what he sees as the greater good.

 

Lee’s Main Point on Patent Reform

If there were any serious doubt about the misleading motivations of Lee they would have to come to rest when you read this quote from his editorial:

And conspicuously, opponents never seem to cite actual legislative text or verifiable data in support of their cursory allegations.

Focusing first on the “verifiable data” component of this comment, what a laughably disingenuous statement given how pathologically fixated proponents of reform have been on thoroughly debunked studies that grossly exaggerate the patent troll phenomena. See here, here and here. Seriously, an economic “study” that conflates the term “costs” with “transfers” could only have been purposefully intended to mislead. And that is before you realize that the grossly exaggerated patent troll figure was achieved by calling everyone with a patent licensing program a patent troll, including operating companies like GE or Boeing!

In any event, the more troubling part of his comment, which takes up most of his attention in his article, is the claim that opponents never “cite actual legislative text.” That is simply false. Reasonable minds cannot differ, there is no legitimate difference of opinion. Lee is wrong, period.

It is pure nonsense to say that opponents of patent reform never offer specifics, cite or discuss textual language of the bills. Utter fiction and complete fantasy. Frankly, Lee’s claims are as comical and insulting as they seem to be uninformed. As it turns out, the proponents of patent reform have carefully cultivated the art of speaking in sound bytes while saying nothing of substance. Baseball, mom, apple pie and patent trolls are evil, who can argue with that? Such easy to remember sound bytes about evil patent trolls (whoever they are) can fit on a bumper sticker.

On the other side, however, opponents of patent reform make far more detailed and nuanced arguments, which has been so frustrating that I have personally discussed it at forums all across the country. These intellectual, detailed, nuanced arguments have lead those fighting patent reform to lose the linguistic battle time and time again. So not only is what Lee saying false, but it is 180 degrees opposite from reality. So spurious are Lee’s claims that at first glance the article comes across as a piece of patent satire published by The Onion.

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Seek and You Shall Find

A Google search performed for the term “patent reform” shows that two IPWatchdog.com pages appear in the top 10. One relating to patent reform not being as dead as you might think, which Lee’s article seems to confirm. The other to our patent reform archives. Similarly, a search for “innovation act” shows that two IPWatchdog.com pages again appear in the top 10. One article relating to bipartisan disapproval of the Innovation Act, and another article relating to the House Judiciary Committee approving the Innovation Act despite a clear consensus.

The point is this: If you are seriously trying to inform yourself about what so-called patent reform critics think about patent reform it would seem relatively impossible not to stumble onto the pages of IPWatchdog.com, even if by accident. If you were to just by chance find yourself reading IPWatchdog.com you would read chapter and verse on why the so-called patent reform critics believe patent reform is bad – in excruciating, long form detail with reference to provisions and citations to specific provisions. Thus, Lee’s commentary seems all the more disingenuous and unbelievable if you ask me.

For example, those who might seriously want to learn the reasons why so-called patent reform critics think the proposed litigation reforms would do real, substantive damages to patent owners might find it instructive to start by reading these articles, which all specifically cite to language and provisions of the pending patent reform bills:

Then you can move on to the essays and analysis, which explain the real problems facing the industry, why the pending bills won’t do anything to address the problems facing the industry, and what is really behind the constant push for patent reform. See:

Conservatives have made principled arguments against patent reform both on IPWatchdog.com and elsewhere. See:

We have numerous other articles on IPWatchdog.com, and I know there are other places you can go to read detailed analysis citing textual language and explaining in detail exactly why patent reform is a mistake. Does Lee simply think that by saying this in The Hill people will believe it? I suppose he does, which is in and of itself a sad commentary.

After you read these articles you no doubt will have a better understanding of the criticism levied against patent reform, likely with more detail than you ever wanted. Perhaps Lee never read these articles before erroneously proclaiming that opponents of patent reform never cite specifics. In any event, after reading these articles only the most disingenuous partisan could suggest that opponents of patent reform do not offer specific explanations citing to textual language of the bills. Indeed, quite the opposite is true.

 

One-Sided Patent Reform is NOT Reform

In law school you learn a very old saying that goes something like this: If the facts are on your side you argue the facts, if the law is on your side you argue the law, if neither are on your side you just speak forcefully and with conviction. Perhaps this just recognizes the unfortunate reality that truth is not on their side some people will resort to lies. Sadly, many times in life when battle lines are drawn truth becomes the first casualty.

In a nutshell, the proposed patent litigation reforms will make it more difficult and costly to enforce patents, which will disproportionately impact independent inventors, research and development companies and Universities. Indeed, the Innovation Act is a comprehensive overall of patent enforcement intended to fix isolated abuses but which will compromise the rights of all inventors. And what good is it to have a right that you cannot enforce because the cost of enforcing the right is too high and the rules too onerous to follow? Might as well not have the right in the first place, which is precisely what that infringer lobby would prefer and exactly why pending patent litigation reform goes well beyond addressing abuses everyone can agree are intolerable.

Ironically, the litigation reforms contained in the two primary patent reform bills now pending – the Innovation Act in the House and the PATENT Act in the Senate – are one way streets that seek to make litigation more costly and difficult for patent owners but have no similar provisions to reign in litigation abuses by infringers. In fact, those in Congress that support patent reform seem perfectly content to ignore the reality that efficient infringement is alive and large corporations bully real innovators rather than pay fairly for the use of the innovations they appropriate, increasingly without penalty.

I also don’t understand how you can this legislation “patent litigation reform” when it does nothing to take into account the abuses of infringers. Fee-shifting provisions are one-sided, as are all the additional obligations. There is nothing in the bills that would address the very real and concerning abuse by some defendants who simply bully innovators.

“Reform” that looks at only one aspect of a problem is at best misguided and at worst a property rights grab intended on redistributing the wealth (i.e., patented property) from patent owner to infringer. As we have watched corporations increasingly have their way with seeming impunity it is no wonder so many Americans think the U.S. economy is rigged. It certainly has been rigged against innovators for years. See here, here, here, here, here, here, here, here, here, here, here and here, for starters.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 7 Comments comments.

  1. Night Writer February 9, 2016 9:36 am

    From the patent litigation I have been involved in, I felt that tweaking the system would fix it. The problem, I think that has caused so much trouble is that it can very inexpensive to bring a patent infringement suit the second time. A P may spend maybe 60 hours of time and force the D to spend $2,000,000. That imbalance is the problem.

    I won’t offer solutions here, but I have some. But, actually speaking with people that have defended small companies from NPEs (like me) would help a lot. And, again, the problem is the imbalance in upfront costs for that second lawsuit.

    (One part that is so expensive is the invalidity contentions. Some local rules make you produce all of your invalidity contentions right up front. So, what does that mean? It means you have to pay for all that right at the get go, or forego it. Well, you can get them added but it is hard and you better have a good reason.)

    Anyone, I am pretty convinced that if the courts just tweaked things so that the upfront costs weren’t so out of balance that patent litigation would go way down.

  2. staff February 9, 2016 3:29 pm

    ‘if you make the lie big and keep repeating it eventually people will believe it’

    Precisely. As Mark Twain said, ‘truth is not hard to kill, and (that) a lie well told is immortal’. Those who use the amorphous phrase ‘patent troll’ expose themselves as thieves, duped, or doped and perpetuate the lie.

    Like EFF, inventors will tell you Lee’s pseudo public interest group is just another PR firm hired by large multinational invention thieves. Their goal is to spread lies and distortions to help these giant multinationals legalize theft.

    Don’t believe the lies of thieves. Just because they call it ‘reform’ doesn’t mean it is.

    For more information please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at tifj@mail.com

  3. nat scientist February 9, 2016 10:01 pm

    The Founding Fathers, children of the Scientific Revolution had learned of scores of Centuries of Institutional Reformers designed to snub the Individual who dared to stand alone and shout out their new idea that may have crossed the King’s barons. They chose to engrave the Patent Act as follows:
    http://ipmall.info/hosted_resources/lipa/patents/Patent_Act_of_1790.pdf
    Who stand with this corporate tool and senior vice president to fix their thinking, must love Citzen’s United to give a voice to the inchoate corporations.

  4. Michael February 10, 2016 12:47 pm

    Hi Gene,

    Great article.

    I was an elected official and have seen the game plans used by powerful, politically-connected forces to execute on and implement extremely damaging legislation.

    Mr. Lee’s article is intended to convince low-information followers of patent reform that what is needed is more reform – essentially doubling down on the reform that somehow did not deliver as promised. His article will also be used by elected officials, Supreme Court Justices, and the President to justify the votes/approvals needed for anti-patent reform. Lee’s article confirms that the anti-patent reformers have not and will not stop unless stopped. Unfortunately, we and many of our supporters have day jobs. Equally unfortunate is that anti-patent reform is the day job of Lee and many other like-minded parties.

    The reforms to patent law will impact the lives of all Americans. However, most Americans are unaware of the changes made to date and the changes that could occur in the future. The complexity of the issues involved further discourages the attention needed by the pro-patent side of the equation. Patent reform in any form is way down the list of priorities for the average person – worries about continued employment, health care, stagnant/falling wages, affordable college education …. This means that the lobbying by the anti-patent forces must be countered in time and money by lobbying by the pro-patent forces.

    The question is – where will the money come from to support the counter-lobbying by the pro-patent forces? Articles explaining the facts and truth are great – but in the end it is a war waged in the back offices of Congress, the Supreme Court, and the White House.

    Keep up the good fight.

    Michael

  5. Night Writer February 10, 2016 10:15 pm

    >>but in the end it is a war waged in the back offices of Congress, the Supreme Court, and the White House.

    It would go a long way to get a president that isn’t an ignorant lazy money grubbing #$@%# (Obama, Bush, Clinton).

    I think there are a lot of parallels between financial deregulation under Clinton and burning the patent system under Obama.

    I think the damage is much more severe right now then people realize. I think it is going to take a few more years to take its toll (also if they get the trade secret regulation then that will be a giant step to not using the patent system.)

  6. ValuationGuy February 11, 2016 11:27 am

    Well…we have several cases being tee’d up for the SCOTUS to address this term regarding the current mess that the CAFC majority has made in the patent field following the AIA. (Cuozzo Speed (accepted), MCM Portfolio v. HP (assuming the writ is submitted in the next three weeks…or Cooper v. Lee if they don’t), and/or possibly Synopsis (decided by the CAFC last week…probably the least likely of the cases for review since the issue is narrower). Given the backlog of challenges in the pipeline…the SCOTUS is going to have to address most of these issues directly…and with Cuozzo Speed already on the docket and other well-set up cases following closely behind….it is an opportune moment for the SCOTUS to address many the major issues in one series of decisions which will at least set clear ground rules for all parties….something that is sorely needed.

    As (CAFC) Judge Newman continues to point out in her many dissents…the CAFC majority continues to create anti-patent policy with their incompetency in reading legislation and prior Supreme Court rulings by their plain and clear meaning…instead tortuously trying to re-tailor previous decisions to match their anti-NPE agenda.

    In addition to this article, I also agree with your sites’ article about the surrogates being allowed to drive the conversation providing cover for the politicians to “reform” the system.

  7. rr February 12, 2016 2:22 pm

    Gene:

    Thanks for pointing this out. Lee is just a shrill for big tech anti-patent folks. Having been on both sides of various patent litigation fights with corporations and NPE’s, I can truly appreciate the frustration of what I consider to be a “patent troll” – an entity with no other purpose than to extract a settlement below litigation value on a patent the troll knows, or should know after reasonable diligence, is likely invalid or not infringed. Similar to the classic ambulance chasing lawyer who wants a nuisance settlement for a small or non-existent injury.

    Judges already have the ability to punish such entities for bogus or vexatious cases. And, similarly, punish defendants that abuse discovery rules, etc. Patent reform adds nothing to the equation. IPR’s, stays and the lack of injunctions have already moved the scale in favor of the defendant. And judges have the ability to issue a remittitur. I had a judge threaten me with one in a case we were going to win, ie, he was not going to let us win the lottery, so we had to settle.

    As a side note, I am always amused when East/West Coast people complain about the ED TX like it is in the middle of nowhere. It is true that the courthouses are in some smaller cities, but it is not a rural, low industry district. I did a little research and found the following: It comprises 44 counties with a population that is larger than 22 states. There are literally billions and billions of dollars of real estate and corporate development occurring in the western counties around Dallas which include headquarters and major operations for multiple Fortune 500 companies with new companies moving there constantly. To play it up suggesting many companies have no ties to the ED TX is ridiculous.