No, Virginia, Patent Reform Is Not Dead

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Mytheos Holt Policy Analyst
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Ever since the issue of freeloading legal parasites exploiting the patent system to bleed innovators dry hit the national stage, one of the fondest hopes of the patent troll/extortion lobby has been that Congress would lack the political will to tackle it. 

They have tried to ensure this outcome using multiple different tacks: when the reformist Innovation Act of 2015 was still on the docket during the 113th Congress, they muddied the waters by introducing misleading, troll-friendly bills masquerading as reform such as the inadvertently aptly-named TROL Act. When the issue took a backseat the following year, they began spreading the meme that courts could be relied upon to fix the problem, despite the fact that solving a systemic problem through individual cases would amount to a Whack-a-Mole game from hell. Bizarrely, they only kept up this spin when the Supreme Court did actually weigh in on the issue…by finding unanimously against them over and over again.

Yet apparently, drawing attention to the Supreme Court’s decisions has not dampened scrutiny on the patent troll problem. If anything, it has increased it. Just this week, the House Judiciary Subcommittee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the unanimously anti-troll decision, TC Heartland v. Kraft: a hearing that looks to have left members more alarmed than they were when they went in.

Some brief background is necessary: a favorite tactic of patent trolls is to open offices near district courts with a reputation for siding with plaintiffs in patent infringement suits, such as the deservedly infamous Eastern District Court of Texas. In essence, picture the kind of opportunistic venue shopping that Leftists have used to hobble the Trump administration as a business model.

Thankfully, the United States Supreme Court unanimously disapproved of this strategy and went about as far as they feasibly could to make it impossible in the TC Heartland decision. However, rather than killing the practice of patent troll venue shopping altogether, TC Heartland simply shifted the focus of its targets. Now, rather than target companies like Apple and Google (favorite targets of the troll lobby) directly, the trolls can simply go after anyone who uses or sells their technology, such as retailers or restauranteurs. In other words, what was already a bad situation for small business could arguably get a lot worse.

It was against this backdrop that the aforementioned House hearing was held. While the trolls’ advocate on the panel made a brave attempt to spin away the obvious issues with the existing regime, his fellow panelists presented a much more accurate picture. As a result of this, even conservative stalwarts like Reps. Bob Goodlatte (R-VA) and Darrell Issa (R-CA) expressed open worry over abuse of the system. According to the pro-troll legal site IP Watchdog, for example, Issa called patent trolls “the scourge of the patent world” and complained that genuine inventors often mistake attempts to stop trolls for attacks on them. Goodlatte, meanwhile, expressed concern (correctly) that 25 percent of all patent cases are heard in the Eastern District Court of Texas, and remained unpersuaded when the pro-troll panelist tried to explain away this obviously predatory fact. Finally, Issa cited none other than Thomas Jefferson’s views on patent law as a spur to reform, and slapped down a snarky suggestion by the pro-troll panelist that the first patent couldn’t exist in the modern age. “I think even Patent No. 5, the improvement of rye whiskey distillation, probably would still be patentable,” Issa snarked back.

That these kinds of concerns and ideals are still being expressed by influential members of Congress like Issa and Goodlatte are more than simply heartening from the standpoint of academic correctness. They are encouraging because Issa and Goodlatte actually possess the power to reopen the issue through legislation, and may very well be inclined to do so after this hearing. Furthermore, the fact that a hearing over this decision was called in the first place exemplifies a very encouraging fact: concerns over the patent system, which are shared by everyone from Senate Minority Leader Chuck Schumer (D-NY) to House Speaker Paul Ryan (R-WI) are far from dead in Congress. Reform is still something our legislative leaders want to tackle.

And now, after this hearing, there is real hope that the time for listening will be over and the time for action will arrive again.