Yesterday 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.
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:
- The Innovation Act Will Harm Income, Employment, and Economic Growth
- The Innovation Act is Bad News for America’s Patent System
- Reintroduced Innovation Act Goes Too Far – By a Mile
- Innovation Act makes patents harder to enforce, easier to infringe
- Why customer stays are terrible for the patent system
- Patent Reform riddled with intended, unintended, and unknown consequences
- Patent Reform 101 – A Primer on Pending Patent Legislation
- PATENT Act Still Ominous For Startups and Small Inventors
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:
- Fee-shifting won’t do anything to stop Patent Trolls
- Will Congress be misled on patent reform again?
- A false patent reform narrative – The Innovation Act is not about small businesses
- Patent reform fuels fear, paralyzes U.S. innovation market
- The Future of Patents and the Fork in the Road
- The Innovation Act vs. The Innovation System
- Professors Urge Caution on Patent Reform
Conservatives have made principled arguments against patent reform both on IPWatchdog.com and elsewhere. See:
- Conservatives Should Have No Part of Patent Reform
- The Conservative Case Against Patent Reform
- Patent Reform Comes at the Expense of Entrepreneurship and the American Worker
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.