A Good Opportunity to Reframe the Patent Reform Debate

Corrosive changes in patent law are undermining research university commercialization of patented, federally-funded basic research, endangering our nation’s innovation ecosystem. Mounting uncertainty repels private investment needed to convert new discoveries into innovative public benefits. Prominent investment destabilizers include: post development invalidation, big-tech’s efficient infringement, increased costs of patent enforcement, looming congressional patent reform, and foreign IP theft and price/access manipulation. Collectively these uncertainties can crumble our country’s world-class innovation ecosystem. We must use the limited time left to reverse that catastrophic outcome by seizing every opportunity to do so.

In 2013 when big tech-backed HR 3309 burst through the House with a lop-sided vote of 325 to 91, it seemed that the end for research university commercialization was near. But the bill’s punishing applicability to all patent holders stalled it in the Senate. In 2014, it reemerged from House Judiciary as HR 9 and was sent again to the House floor. In 2015, HR 9’s Senate counterpart, S. 1137, cleared contested Judiciary Committee debate. It too was reported out for floor consideration.

By then however, off-Judiciary members in both bodies were hearing heated objections from home-state small businesses, inventors and especially their research universities. They learned that despite proponent assurances that both big tech-backed bills were designed to “cure” an over-blown troll “crisis”, passing either one could wreck their regional economies. They heard big tech badmouth better, narrower solutions to troll concerns they were led to believe could be fixed only by comprehensive patent enforcement litigation reform. But many members also learned that tailored, targeted demand- letter legislation could solve the troll problem without punishing every patent holder. And most important, members realized that their proudly supported annual $130 + billion dollar appropriations for basic R&D would be wasted if private investment was not forthcoming. Members also realized that costly access to judicial patent enforcement had become exclusively available to resource-rich incumbents beyond financial reach for everyone else. Controversy rose and both bodies balked, afraid to face a “tough vote” so close to upcoming elections. Neither bill has yet had floor consideration. But both still hover and almost certainly will land in the Lame Duck session or early next year.

Time, transparency and growing understanding of big tech’s market-driven infringement damages- avoidance motives have helped pro-patent advocates stave off enactment of this innovation ecosystem killing legislation. But if early stage innovation’s partnership with private sector investment is severed by any more uncertainty, the system will collapse. There is limited time left to prevent the loss of development investment’s keystone support for our nation’s innovation ecosystem. We must use it well.

Big tech’s lobbyists, PR tub-thumpers and academic boosters will be back with their bag of tactical tricks to misdirect congressional attention from big tech’s strategic need to serially infringe. But if we wisely use the months ahead to make the most of every opportunity to help the Congress better understand the economic miracle of our innovation ecosystem, we can defeat these looming anti-patent measures. We can begin eliminating the investment uncertainties repelling mission-critical private sector investment to commercialize promising federally-funded basic research. We must repair commercialization’s conduit to public’s receipt of innovation’s beneficial products, cures, and economic development whose birth is triggered by congressionally appropriated R&D funding. In short our nation’s innovation ecosystem must be better understood by Congress.

All ecosystems depend for their survival on certain “keystone“ components. Our innovation ecosystem is no different. Fresh ideas matter, but only when they are developed with supportive capital. For example, commercializing fundamental life science research is both costly and time-consuming. It requires complex scientific study, elaborate testing and regulatory approval before its breakthrough cures complete their trip from lab bench to bedside. IP uncertainty is now deterring university tech transfer efforts that must take place ten years earlier. And even after successfully completing that burdensome development trek, the most effective biomedical products become the most targeted victims of new patent invalidation ploys and foreign IP manipulation.

Big tech’s skillfully orchestrated anti–patent onslaught has been enabled in the past by the confluence of: issue complexity, an unengaged public, member time constraints, public relations “pre-gaming”, and irrelevant but effective bi-partisan and bi-cameral leadership “buy-in”. But the most important driver of big tech’s past momentum has been member failure to consciously connect their federal support for basic R&D with patent enforcement reliability. Patent unreliability eliminates attraction to invest in the patent’s subject matter. Innovation ecosystem ignorance invited big tech’s past “bait and switch blitzkrieg” of misinformation, enabling them to shift the burden of persuasion to big tech’s pro-patent opposition. And it has been a heavy burden.

Because “yes” votes must be explained, they are harder to secure than “nays”. Big tech cleverly converted comprehensive patent litigation revision “yes” votes into easily explained votes that said “no” to patent trolls. This tactic shifted the burden of persuasion to pro-patent advocates. Persuading pre-sold members already committed to curbing patent trolls that revising complex, arcane patent litigation was uncalled for and unfair is no easy task. Pro-patent advocates also had to scale pre-constructed walls of leadership support and inevitable passage climbing the weedy ladders of arcane patent law and trial procedures. There is no “elevator speech” on patent reform.

What matters is which side is forced to crawl through the tangled policy weeds of patent litigation and which enables members to say “no”. Big tech cleverly shoved pro-patent advocates into asking members to say ”yes” to trolls (though undefined) because it was not sound policy to pass revisions in arcane, unknown patent litigation process. It is thus a tribute to pro patent advocates these bills are still on “pause”. Delay is not defeat. HR 9 and S. 11137 will pass unless we shift that burden of persuasion back where it belongs by making the big-tech lobbyists justify their requests for voting “yes” to patent litigation reform. Make them explain to members how patent litigation is now flawed, and how and why it must be changed. Members proudly understand the medical and economic benefits of saying yes to annual R&D appropriations. They need to understand the commercialization pipeline that enables tax-payer to realize those benefits.

The New Invention Caucuses:

Senators Daines and Hirono have circulated letters inviting Senate colleagues to join an Invention Caucus whose purpose is to “educate members and staff about the innovation ecosystem.” A House Caucus counterpart established by Reps. Foster and Gosar invites colleagues to share candid, balanced conversations about regulatory and legal IP barriers to economic growth. Both initiatives can enable better member understanding of our innovation ecosystem, but only if pro-patent advocates actively support them.

Invention Caucus founders will need support to help them efficiently achieve their laudable objectives. Members should be urged to join. Joining a caucus is not an admission of common cause, only of common concern. All who join will only have signaled interest and a willingness to learn more about our innovation ecosystem. There is no sound policy reason to cripple commercialization of federally-funded basic research. Private investment in the development of such research is its only pathway to the public’s return on members’ R&D investments. Members who understand our nation’s innovation ecosystem will not again be stampeded again into thinking they are curbing patent trolls by voting “Yes” to big tech-backed proposals that will cripple the innovation ecosystem. The Invention Caucuses provide a pathway through big tech’s walls of misdirection. We must help their leadership succeed

We cannot not match big tech’s financial resources and political clout. If we productively use this pause to reframe the congressional question, we can undo HR 9 and S 1137’s destructive answer. By focusing member attention on how our innovation ecosystem delivers the public benefits of their funding for basic R&D, we can force our anti-patent adversaries to explain why they should say “no” to messing with it by voting “no.”