The following is in response to Mytheos Holt’s Townhall “The Three Dumbest ‘Conservative’ Objections to Patent Reform.”
The Left, along with huge Leftist companies, are pushing to fundamentally transform – radically undermine – the Constitutionally-protected intellectual property known as patents. As the Left is wont to do, they are looking to thoroughly alter the Constitution – without amending it.
Passing legislation that guts a Constitutional tenet isn’t Constitutional – it’s tyrannical. If you want to change the Constitution – you must traverse the amendment process. But it is much easier to pass a law than it is to ratify an amendment – so the Left circumvents. They pass unConstitutional laws – and hope to get a radical judge or two to back their play in court.
We saw this a lot in the first quarter of the Barack Obama Administration – when his Democrats controlled both houses of Congress. They passed a lot of unConstitutional law – preeminently exemplified by ObamaCare. Which is – through any reasonable legal prism – grossly unConstitutional. But Supreme Court Chief Justice John Roberts and four of his colleagues bizarrely found yet another emanation from yet another penumbra – and propped it up.
In large part in response to all of this nonsense, the American people transmogrified a Democrat-controlled Congress into a Republican-controlled Congress. Sadly, this has not brought an end to the Constitutional end-runs.
Falsely in the name of “lawsuit reform,” it makes it in many ways much more expensive for – and indeed prohibitive of – innovators protecting their innovations in court. Many, many times a patent holder is a little guy who’s developed an idea in his basement or garage – and the thief is a mega-company like Google (and they steal a LOT). Making courtroom adjudication more difficult and more expensive doesn’t really bother the deep-pocketed thief – but it absolutely cripples the little guy inventor.
Then there are the “demand letters.” Bad faith demand letters are bad-acting patent holders shotgunning legal correspondence to anyone doing anything remotely connected to their patent – in the hopes that the recipients will settle in cash to make them go away. These are the much ballyhooed “patent trolls.”
But you need an almost magical legislative scalpel to differentiate between bad faith demand letters – and perfectly reasonable demand letters written by legitimate patent holders defending themselves against thieves. Government doesn’t do precision very well – at all, ever.
The Innovation Act doesn’t even address demand letters. The Patent Act does – terribly. It lumps every demand letter writer into one huge pile – and renders them all all-but-powerless to defend their patents.
Of course there are some bad patent apples. But these bills overturn the entire apple cart – then set it ablaze and salt the scorched earth. And neither of these bills even look at the original sin – bad government execution.
The United States Patent and Trade Office (USPTO) is charged with approving patent applications. They are often…imprecise. And approve overly broad, abusable patents. Which are often sought by and granted to the aforementioned bad actors – who then use them to engage in all of the bad litigious practices we have discussed.
Rather than burn down the entire system – how about we instead address the root cause of all the ensuing nonsense? Tighten the USPTO approval process – and just about all of the resulting mayhem goes away.
And does so without yet again pretending yet another part of the Constitution doesn’t exist.
That is the conservative thing to do.
This is a guest post by Seton Motley, Founder and President of Less Government