BY RUSSELL SLIFER, OPINION CONTRIBUTOR – 08/04/17
The U.S. Patent system has been under attack for over 12 years and the resultant damage is extensive. The U.S. patent system has fallen behind much of the world and the eroded value of patents has reached a point where corporate leaders are questioning the need to seek patent protection for new inventions.
The damage began with lobbying in the early 2000’s to address abusive patent litigation that was causing harm to U.S. companies. Congress, judges and the American public were told about unscrupulous litigants that were abusing what was characterized as a flawed patent system that did not issue perfect patents all the time.
The anti-patent lobby believed that the U.S. patent system was too strong and needed to be weakened. But seeking to weaken the U.S. patent system, which is rooted in our Constitution, would be viewed as un-American. So, the anti-patent lobby instead dehumanized patent owners by labeled them “patent trolls” who contributed nothing to society.
They created a compelling narrative that these trolls were extorting huge sums of money from hard working U.S. companies, including main-street mom and pop businesses, and that their actions threatened the very fabric of the nation’s economy. This got Congress’ bipartisan attention to “save U.S. businesses from extortionists.”
In 2005 the list of desired patent litigation reforms seemed benign enough. Reform advocates argued that because patent trolls only wanted money there is no need for them to get injunctions against infringers. Likewise, patent trolls should not be able to extort companies in patent-owner favorable jurisdictions. Patent trolls always wanted damages based on a whole product’s revenue, not just the value of a “trivial patented invention,” so the lobbyists wanted to change patent damages laws to narrowly apportion damages. Finally, the cost of litigation should be shifted to the failed patent troll extortionist.
As the patent litigation reform movement gained traction it attracted other groups with complementary anti-patent goals. Software organizations, who view software as a community asset that needs to be freely shared for the benefit of all, joined the reform effort to advance their desire to eliminate all software patents. The well-connected Wall Street financial industries wanted to eliminate business method patents that frustrated their new business models. And when the USPTO was attacked in the media for issuing patents on crustless peanut butter sandwiches and a method of swinging on a swing, a push was made to create a post-issuance review process to address poor quality patents.