The Obama Administration was chock full of historic firsts. To wit: It was almost unquestionably the administration most hostile ever to IP and its protection.
Perhaps the administration’s most egregious act? Inventing a whole new way to attack patents – by abusing antitrust law.
To demonstrate the obnoxiousness of this – let’s define a couple of terms.
Patent: “(A) government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.”
Antitrust: “(C)onsisting of laws to protect trade and commerce from unlawful restraints.…”
Get that? Patents are the government – granting exclusive usage. Antitrust are the laws – prohibiting unlawful restraints.
We KNOW patents aren’t unlawful restraints – because the government its own self granted them. Oh – and the Constitution specifically protects them.
But that didn’t stop the Obama Administration from suing US patent holders on these fetid grounds.
And even worse, the Obama Administration’s obnoxiousness – served as a visual aide for many bad actors the world over.
All because the Obama Administration led the pernicious charge.
The administration also worked with Congress – to tandem attack IP. Enacted in 2012 was the woefully misnamed America Invents Act. What that law does – is undermine those who invent.
Perhaps the worst aspect of that awful law – was the creation of the Patent Trial and Appeal Board (PTAB). Which turns the United States Patent and Trademark Office (USPTO) – upside down and inside out.
The USPTO exists to approve patents. The PTAB – injected like a cancer into the USPTO – exists to destroy patents.
PTAB – is where patents go to get murdered. Patent infringers – who don’t want to pay for patents – instead challenge said patents in the PTAB.
And PTAB sides with the patent thieves – 85% of the time.
The average cost to defend against just one PTAB challenge – is $350,000:
“In the rare instance that the PTAB permits an inventor to keep his patent, there is no monetary recovery. This means the inventor has nothing to offer a law firm to take the case on a contingency basis. Pro bono defense is not available either.”
Get all that? If the government upholds the patent the government gave you – after prohibitively expensive PTAB assaults – you get…absolutely nothing.
There is thus just about nothing prohibiting patent thieves – from shotgunning PTAB cases at patent holders.
And you can guess what PTAB very rapidly became.
A venue for mega-companies with tons of money – and no desire to spend any of it on patents – shotgunning PTAB challenges at Little Guy inventors who don’t have a hope of defending themselves against the mega-companies’ mega-dollar overrun tactics.
PTAB is offensive. And devastating to our economy.
We must reverse this terrible trend.
To that end: Percolating in the federal Capitol building – are the beginnings of legislation tentatively entitled The Inventor Protection Act:
“The Inventor Protection Act restores patent protection for inventors by reversing a generation of laws, regulations, and court decisions that have discouraged innovation by failing to secure to inventors the exclusive rights to their discoveries….
“Incentivizing inventors is the whole purpose of innovation policy. Inventors are the ones who must be equipped and motivated to apply their knowledge and creativity to solving problems.
“But current policies and case law focus instead on patents as monetary assets held by corporations, injecting extremely high cost and risk to enforcing any single patent and making patent enforcement a ‘game of kings’.
“Big corporations play the game by hiring dozens of lawyers, hoarding hundreds of patents, and pouring millions of dollars into litigation.
“Inventors cannot play that game and need a viable path to enforce their patent rights. In order to encourage inventors to participate in the grand bargain – sharing their discovery in exchange for a time-limited exclusive right – patents owned by the original inventor must be protected from the policies that target assets held and traded by non-inventors.”
Amen and Hallelujah.
Here’s hoping these early Inventor Protection Act inklings – quickly become ready-to-pass law.
And that this Congress – is ready and willing to pass it.
This first appeared in Red State.