Citing congressional disarray and recent Trump triangulation, experienced Hill observers are urging pro-patent advocates to lobby NOW to pass the STRONGER Patent Act. They emphasize that it is the only patent measure pending and patent staffers familiar with Oil States’ pro-patent AMICI briefs have not yet read anti-patent opposition’s “public rights” responses (due Nov 1). Now, therefore, is the time to turn member and staff patent attention into a teaching moment. Add in NIH’s bipartisan $2 billion budget boost. Its recent congressional prioritization of life science commercialization has elevated the importance of returning private sector investment now deterred from participating in life science commercialization by weakened patents and the possibility of price-based Bayh-Dole march-in. Such R&D commercialization will be understood by members intimidated by the Act’s complex content. One need not understand arcane patent law to realize why TV’s “Shark Tank” investors insist on patent protection before they fund proposals.
Most important, Silicon Valley opposition to the STRONGER Patents Act has suddenly been back-footed on the Hill by a recent spate of negative publicity. Our earlier posts have chronicled expanding press coverage of the Valley’s disregard for personal privacy and intellectual property. Coupled with reports of persistent cultural misogyny, recent record lobbying expenditures and academic like “stink-tank analysis” are losing their former influence. Google’s dolphin-like “don’t be evil” persona now seems more shark-like.
The Hill is taking notice. Campaign support is always welcome but being caught in bed with Google is becoming dangerous. A recent “Buzz Feed” article entitled, “Blood In The Water in Silicon Valley” documents the Valley’s hidden thuggery. It is well-worth reader review. (Link found in our online article)
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A dozen years of patent holder beat-down are now seen by many as the work of unregulated digital incumbents unencumbered by pre-internet anti-trust anti-monopoly regulation. In the new environment, augmented anti-trust revisions are in order. Systematically leveraging their pervasive, platforms digital Goliath’s are crushing innovation. Expedient infringement, overblown troll narratives, and PTAB’s anti-patent bias are now seen as only parts of broader big tech economic abuse. We know Silicon Valley hostility to patents has been protected by a lazy press and member yen for campaign support. Now tech’s self-serving patent reform is more widely understood as only part of big tech’s broader bad behavior. The bloom receding from big tech’s rose is shifting the burden of Innovation Act persuasion to its promoters. As Buzz Feed’s biting piece concisely notes:
“This sort of political change happens slowly until it happens fast.”
Pro-patent advocates must act quickly to capitalize on what may be a temporary opportunity. Google and its anti-patent allies will not be defeated without our timely effort. They are smart. Their DC influence lingers, and still their money talks.
The pro-patent advocates’ immediate short term goal is passing the STRONGER Patents Act.
Longer term, a pre-internet anti-trust law designed to prevent rent-seeking pricing due to regional market concentration is no longer adequate. In today’s environment, geography matters less. Our economy’s new problem is its distorted evolution caused by organized deterrence of investment in innovation. Unsated by patent reform’s innovative suffocation, digital monopolists profit by prioritizing user access to favor allied service and product providers. And antitrust law aimed at increased consumer pricing falters when these giants’ lower prices long enough to kill potential rivals in their crib.
AIA’s patent enforcement lockout of lesser-resourced patent holders reminds us that big tech’s dodgy business practices are not confined to influencing DC policymakers. Patent reform has been part and parcel of a broader pattern to preserve monopoly pricing power. Digital behemoths talk about a better world, but their walk, including their version of patent reform, displays economic conduct calling for quick enactment of the STRONGER Patents Act.