For Corporate Patent Cronies, Too Much Is Never Enough

Kevin Glass Director of Policy and Outreach, Franklin Center for Government and Public Integrity
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The media loves nothing more than a story of “bipartisan coalition” in an era of divided government. Unfortunately, their most recent hobbyhorse of “bipartisanship” is on an issue being pushed by the White House and their corporate cronies in an election-year effort to ram legislation through over the objections of a voices on both sides of the aisle.

There are two pieces of legislation — the PATENT Act in the Senate and the Innovation Act in the House – being pushed by the White House and President Obama, aiming at an enormous overhaul of America’s intellectual property law. These policies are being backed by corporate tech giants like Google and Facebook under the false idea that booming patent litigation is harmful to America’s intellectual property laws.

Here’s the real story: in 2011, Congress passed the America Invents Act, which constituted the largest overhaul of our intellectual property system in more than fifty years. The main portions of the law didn’t go into effect until 2012 and 2013. What’s more, two Supreme Court decisions — Bilski v. Kappos in 2010 and Alice Corp v. CLS Bank in 2014 — are the biggest cases in IP law in decades and will shape our system of intellectual property for years to come.

We’ve only been living in this new world for a few short years, and the corporate giants want to go back to the well for another overhaul, claiming that all of this hasn’t solved any of our problems. But if we examine the actual effects of all of these policy changes, we can see that the problems cited as necessitating more legislation are already being addressed.

The claims of out of control patent litigation have not been borne out by the facts — the patent litigation rate has been holding steady under 2 percent for decades. The cost of patent litigation is down as well, with median damages dropping in recent years. The fears about “patent trolls” may be overhyped.

At the same time, what new legislation might do is protect these big corporate giants while leaving small innovators at risk. The big corporations have the money both to fight to protect their innovations and to cover their legal fees when they’re the ones infringing on others; small inventors and innovators don’t have that kind of cash. Big businesses can just stall them out without having to worry about whether or not their innovations are pushing the little guys out of the market.

This is why Facebook, Google and other corporate behemoths want to keep the pendulum swinging against protections for intellectual property in the United States. It’s simple: they have the money, and smaller competitors don’t. In addition to money, they want the power of law and the courts on their side.

The justifications for yet another massive overhaul of our patent system are thin and getting thinner; and in a hurry-up panic-mode legislative environment, the big corporate giants think they can sneak through more crony capitalist legislation under the guise of “election year bipartisan reform.” Unfortunately for a complicated issue such as this, the narrative isn’t that simple.

On Capitol Hill, opposition has emerged across the political spectrum to oppose the corporate-backed overhaul proposals. Members like Sens. Chris Coons (D-Del.), Ted Cruz (R-TX), Sen. Dick Durbin (D-IL), Kelly Ayotte (R.-N.H.) as well as Rep. Jim Jordan (R-OH), Rep. John Conyers (D-MI) are some of the leading voices urging caution, not expediency, for these huge pieces of legislation, and have cosponsored more modest, incremental reforms that would still address the aspects of litigation and innovation that do need to be addressed in any legislative efforts.

“Bipartisan reform” is like catnip to a mainstream media that likes to pitch issues in terms of black and white. Discussions around intellectual property law, unfortunately, cut along nonpartisan lines due to the big corporate tech cronyism in Washington. It’s not a story as simple as the media likes to make out: there is partisanship on both sides of the aisle here, but actually allowing the massive changes to our intellectual property system to take effect without rushing headfirst into another overhaul would be the more prudent choice for legislators in 2016.