U.S. can't afford to mar innovation

Proposed patent reforms mean less protection for the underdog.

from the January 28, 2008 edition

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A self-proclaimed goal of the Patent Reform Act is to decrease patent litigation. But lawmakers have forgotten that a patent does not even give an inventor the right to practice the patented invention – only the right to exclude others from practicing it.

The average cost of defending a patent in court is already about $4 million, an exorbitant cost for independent inventors, small companies, and universities. The proposed legislation would make it even more costly and reduce recoverable damages. Reducing patent litigation by making it more expensive to defend a patent only encourages unscrupulous theft of ideas.

Sadly, the patent reform legislation is well on its way to becoming reality. The House approved the reform bill on Sept. 7 and the Senate Judiciary Committee released a parallel bill, with Senate leadership pushing for a full vote as well. The Democratic leadership is aligning itself with corporate giants such as Microsoft and Intel, abandoning the little guy and the underdog.

Do we need patent reform? Yes. A 2006 Supreme Court decision, eBay vs. MercExchange, muddied the fundamental "right to exclude," which is the definition of a patent. Congress should correct this by giving an inventor the ability to stop an infringer from unauthorized use of a patented invention (except in the case of a national emergency or public health concern).

But to truly improve the quality of patents and strengthen their protection, Congress must not only reform the patent system, but the US Patent Office itself. Congress should once and for all stop diverting funds from the Patent Office, which needs more examiners to shorten the ridiculously long pendency of applications, and improve the quality of the examination of issued patents.

In 1998, Congress extended the length of a copyright as a result of Disney lobbying to prevent the expiration of Mickey Mouse's copyright.

If lawmakers strengthened copyrights, one form of intellectual property protection, why are they now moving to weaken patents? We are at the mercy of deep-pocketed lobbyists playing trick-or-treat with legislators in Washington. But can we afford to turn back the clock on innovation?

Alexander Poltorak is CEO of General Patent Corporation, an intellectual property management and licensing firm, and is the coauthor of two books on intellectual property.

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