The Market Institute President Charles Sauer has a new piece in Real Clear Markets looking at Senator Patrick Leahy’s ill-advised group of patent bills.
“I sometimes find myself humming or listening tunes from the 90s while doing things around the house or bopping down the road, reminding myself of a simpler time before auto-tune had become popular. These songs are so out of date and unpopular now that my kids roll their eyes and make fun of me instead of joining in on the nostalgia.
However, we still have Senators running our country who were first elected two decades before even these outdated songs were produced. But instead of rolling our eyes at Senators we often hold them in reverence – and forget that they might be out of touch and maybe not the best people to decide how innovation should develop in the U.S.
The primary culprit – who likely still thinks that the Beatles music is just noise- is departing Sen. Patrick Leahy. The distinguished Senator from Vermont has served in the U.S. Senate since 1975 and is currently in his last year in the upper chamber. He has had a distinguished career and is one of the few Senators in the modern chamber who truly represents what the Senate was designed to represent: intellectual debate.
But that doesn’t make him right more often. That doesn’t mean that we can’t challenge his decisions. And, most importantly, it doesn’t mean that members of the Senate should go along with the retiring Senator as a final gesture of respect. In fact, respect in the Senate might be to have a real debate with the Senator. We must force him to the floor to defend his ideas.
Defending his ideas is going to be a long road for the Senator who is currently supporting a bevy of bills that might get attached to the “must pass” National Defense Authorization Act (NDAA). Each and every one of his bills – Patent Trial and Appeal Board Reform Act, Patent Examination and Quality Improvement Act, and the Pride in Patent Ownership Act – run counter to the only explicitly named right that is actually in the Constitution – patent ownership. Each and every one of the patent bills that he supports harms inventors and therefore innovation in the U.S.
The biggest culprit is the Patent Trial and Appeal Board (PTAB) Reform Act. This bill was renamed from the “Restoring the American Invents Act,” after the name was widely ridiculed because the Senator himself had sold the original legislation creating PTAB as way to make defending a patent easier. He has since been proved incorrect, with one judge calling the panel a patent death squad, but even worse his new ideas for “reform” each make the current problems worse. While the American Invents Act was at least intended to help inventors – Sen. Leahy can’t even make that claim about this new update.
The PTAB Reform Act would limit PTAB judges’ discretion to deny petitions, make it easier to appeal adverse rulings at the PTAB, and even give government agencies the right to use this kangaroo court. In other words it takes a panel that has been weaponized by infringers and allows government agencies to challenge patents – originally granted to the inventors by the government – to take away this valuable property from inventors.
It doesn’t stop there though – each of Sen. Leahy’s four patent bills of the apocalypse attack inventors. They make it harder on inventors. They provide more hurdles to jump over. They give infringers more tools and while taking them away from inventors.
And, if this just affected a few small inventors of consumer goods, or a few large corporations that can afford it, then this wouldn’t be a problem. But, changes to the patent system hurt the whole innovation ecosystem. The changes that Sen. Leahy has proposed will provide pause to investors who become less likely to recover their investments, they make it harder for garage inventor to risk their livelihood to create the next big companies, and they provide incentives to infringers – that even provide a second generation of problems.”