Don’t let scare tactics derail patent reform

In this age of media overload, it is often the loudest arguments that break through – while reason and facts easily get lost in the mix.  And so it shouldn’t come as a surprise that, in the debate over reform legislation designed to discourage frivolous patent lawsuits, we’re now hearing messages that “China loves” and “innovators hate” the bill that may soon come to a vote in Congress.  

This claim, of course, is designed to seize on Americans’ apprehension about competition from China and distract from the significant economic benefits of this important congressional effort.  

{mosads}When a bill has the support of American visionaries such as Google, Yahoo, Etsy, Intuit, Amazon, Oracle, Cisco, General Motors, Salesforce and Facebook – just to name a few – it is hard to see how it could be bad for innovation and job creation.  

These companies and others from a broad array of industries, including cutting-edge technology and software companies, use patents to protect their products and services and improve the global competitiveness of our nation. Increasingly, however, patent trolls are forcing these companies to spend valuable time and money battling frivolous lawsuits – resources that could otherwise be dedicated to inventing new products, creating more jobs, and investing in new technologies.  

Abusive litigation is the most significant problem facing the patent system and innovation more generally. It threatens our country’s economic health, technological development, and international leadership. 

The shadowy entities using abusive patent litigation tactics do not innovate, make, or sell anything.  They buy patents from others for the sole purpose of launching shakedown infringement suits against legitimate businesses of all size and kind. Without reform, our country will continue to support a business model that allows flaws in the patent and litigation systems to be exploited, lining the pockets of trolls and harming innovative industries, their customers and the public.   

Since technology companies began the effort to enact comprehensive patent litigation reform several years ago, the need for legislative action has not changed. Despite the passage of the bipartisan America Invents Act and numerous positive rulings by federal courts, abusive exploitation of the system through the filing of unreasonable, harassing lawsuits has continued at an alarming rate.  

Recognition of the problem is universal — the call for reform has come from tech and non-tech industries, from small businesses and big businesses, from Republicans and Democrats, from academia and state governments, and from the White House and Congress. The House is poised to pass strong, comprehensive patent reform legislation – H.R. 9, the Innovation Act – later this summer.  

With momentum building and action expected when the House returns from their break, some groups and individuals are becoming louder and more bombastic in their opposition.  

Their actions are based more on desperation than fact, and their mud-slinging campaign is designed to obfuscate the purpose and effect of the Innovation Act.  Statements about Chinese support or that “the Founding Fathers would hate it” are nothing more than scare tactics from opponents that have no substantively compelling messages on which to base their arguments.   

Those with legitimate concerns have already come forward, and the bill has been rightly modified. Those who are asking for exemptions in the 11th hour want to add a definition of patent trolls that would carve them out of the reach of the bill. 

Their requests are unjustified. The Innovation Act and its Senate counterpart, S. 1137 the PATENT Act, prohibit wrongful conduct by defining the activity prohibited, not by defining the type of person. Just as we don’t statutorily define fraud or burglary or murder by defining who is a fraudster, burglar or murderer, we should not root out abusive patent litigation conduct by defining who is and is not a patent troll.   

These last minute attempts to derail the bill are not convincing. In focusing on the facts and the overwhelming support for the bill from a diverse group of businesses and consumers, it remains clear that this legislation is exactly what is needed to promote innovations and advance American economic strength.  

The House should not lose focus over recess and pass patent litigation reform legislation immediately upon their return in September. In doing so, members of Congress can take credit for a major step forward in protecting U.S. businesses and consumers from frivolous patent infringement lawsuits.  And they will be given credit – by the thousands of innovative businesses and hundreds of thousands of employees throughout the country dependent on a flourishing and balanced patent system – for not being distracted by a few opposing voices that are very loud, and very wrong.  

MacCarthy is vice president for public policy at the Software & Information Industry Association, the principal association for the software and digital content industries, and a leading authority on U.S. tech policy.