Umm…There Is Some Really Good Patent Legislation in Congress

- Juli 31, 2018

Will wonders never cease.

We who follow the goings-on in Washington, D.C. – are used to not a lot of good going on.

We have time and again seen lots and lots of awful legislation – pass and become law.

We have seen lots of last-second omnibus-ing.  Massive, unread spending bills passed at the very last moment – rather than Congress engaging in the normal, transparent budget process.

We have seen lots of Executive Branch fiat action.  Massive regulatory power grabs not passed by our elected officials – but imposed unilaterally by unelected bureaucrats.

We have seen unelected Supreme Court Justices make up Constitutional “rights” out of whole cloth – and time and again write law rather than interpret it.

So when DC even begins to do something good – the temptation is to celebrate as if we’ve witnessed a miracle.  To dance in the streets – and organize parades.

Seton Motley | Red State | RedState.com

I’m feeling more than a little like this about what Congress is currently considering regarding patents.

We addressed but one piece of proposed legislation a fortnight ago.

It’s Time To Roll Back The Attacks Against Our Nation’s Inventors:

“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.”

But that is by no means all that’s going on.  And what else is going on – is…bipartisan <GASP>:

“Reps. Michael Burgess (R-TX) and Marcy Kaptur (D-OH) reintroduced the Targeting Roque and Opaque Letters (TROL) Act, which seeks to exterminate the scourge of abusive ‘patent demand letters,’ or often-misleading correspondence that, critics charge, extorts unwitting small businesses into paying unnecessary ‘settlement’ offers.

“Long a target of lawmakers, deceptive patent demand letters are restrained by provisions in the TROL Act, which Burgess initially introduced in 2015, that empower the Federal Trade Commission to sue individuals and companies sending misleading communications that assert patent infringement claims in bad faith.

“The legislation defines ‘bad faith’ as making ‘false or misleading statements knowingly, with reckless indifference or with awareness of the high probability of deception’ and imposes a $5 million penalty on the most egregious of such conduct.”

This legislation threads a needle – on which DC has had a very hard time finding the eye.  Deal with patent “trolls” – without dealing damage to legitimate patents and patent holders.

But wait – there’s more:

“These provisions had also been included in the STRONGER Patents Act, although the focus of that legislation was softening certain elements of Patent Office proceedings.”

What’s the STRONGER Patents Act?  Besides it also being…bipartisan <GASP>?:

“The Stronger Patents Act of 2017 is sponsored by Senators Tom Cotton (R-AR) and Chris Coons (D-DE)….”

And it is bipartisan <GASP> not just in the Senate – but also the House:

“Reps. Steve Stivers (R-OH) and Bill Foster (D-IL) introduced H.R. 5340, the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act ‘in order to strengthen the United States’ crippled patent system.’…

“(T)he STRONGER Patents Act would align the standard used in district courts to ‘construe’ patent claims with the broader standard currently used in Patent Office trials and would apply the higher burden of proof used in district courts for invalidating a patent to that used in Patent Office proceedings.

“The measure would also make it easier for a patent holder to obtain an injunction halting sales of the infringing product following trial….

“According to Mark Leahey, spokesman for the Medical Device Manufacturers Association, ‘The STRONGER Patents Act provides a balanced approach to protect the work of innovators and entrepreneurs and ensures that bad actors do not misuse our nation’s patent system.”

Sounds outstanding.  Also sounds like the TROL Act and the STRONGER Patents Act – belong together.

Way to go DC.

Now, having two good ideas in the legislative pipeline – ain’t nearly enough.

For the street dancing and parading to actually ensue, DC needs to transmogrify this legislation – into law.

To which we believers in private property rights say: Yes, please.

Oh – and get it done.

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