Representative Goodlatte’s Patent Reform Planning

By way of follow-up to yesterday’s report on Rep. Goodlatte’s 115th Congress agenda, below are Gene Quinn’s patent litigation reform observations regarding his Wednesday announcement.

We note that IP Sub-Committee Chair Issa and full Committee Chair Goodlatte have historically and unabashedly carried big IT’s water in the House for years. But because of an apparent diminution of big tech’s White House enthrallment, Reps. Goodlatte and Issa may need to protect other big tech priorities than efficient infringement. Be assured however, that Judiciary Committee leadership will seize every opportunity available during the 115th Congress to insert HR 9 type litigation “reform” into any measure open to such shenanigans. As Gene notes below, Mr. Goodlatte’s “alternative fact” viewpoint of today’s patent litigation is predictably unchanged. Accordingly, their anti-commercialization, pro-infringement inclinations must not be supported by the implicit validation of research university silence during the coming chaotic session. Sustained commercialization’s friend is controversy, not chaos, where legislative order can be by-passed by hostile committee leadership.The Goodlate-Issa anti-patent pro-infringement agenda therefor must be countered actively until the session ends.

Gene’s Patent Observations Yesterday 

“Congressman Bob Goodlatte (R-VA) holds the Chairmanship of the House Judiciary Committee, and as such will wield a great deal of power over any intellectual property related legislative reforms that will occur during the 115th Congress. Earlier today Goodlatte unveiled his agenda for the 115th Congress. Not surprisingly, a portion of his agenda includes additional patent litigation reform in order to address what he characterizes as “truly frivolous lawsuits,” as well as reforms to keep America’s patent laws up to date and copyright reforms to help ensure “America’s global leadership in creativity and innovation continues.”

Specifically relating to intellectual property, Goodlatte explained his agenda as follows:

To make America more competitive again we must also make our legal system more efficient and fair. America’s legal system is considered the costliest in the world. In fact, one study found that liability costs in the United States are more than 2.5 times that of Eurozone countries.

While we must protect the ability of Americans to seek redress through the courts when they are truly damaged or injured, there are measures we can take to reduce the wasteful burden that truly frivolous lawsuits impose on American competitiveness.  Like excessive regulation, frivolous lawsuits are a drain on businesses, entrepreneurs, innovators, and hardworking Americans. We can and must do better.

Over the next Congress, the House Judiciary Committee plans to reform the litigation system by seeking to reduce frivolous lawsuits, making it harder for trial lawyers to game the system, and improving protections for consumers and small businesses.

We’ll also work on reforms to discourage abusive patent litigation and keep U.S. patent laws up to date. Collectively, these reforms will help alleviate the wasteful burden of unnecessarily expensive litigation costs, thereby freeing small businesses to flourish, unleash innovation, and create new jobs for Americans.

The promise of additional patent litigation reform aimed at eradicating frivolous lawsuits will no doubt make for an excellent sound byte on the evening news, after all who could be against the eradication of frivolous lawsuits? The problem, of course, is that technology users have increasingly engaged in systematic and near collusive schemes to efficiently infringe patents. They simply ignore patent rights of innovators, do what they want, and rely on changes to substantive patent law and procedure that enable them to beat back any enforcement attempts by patent owners. For those limited circumstances where they are unable to play the war of attrition to defeat patent owners they simply resort to the claim that any lawsuit they face is a frivolous lawsuit. In fact, last year Congressman Darrell Issa (R-CA) interchangeably used the terms patent owners and patent trolls, as if it is black letter doctrine that all patent owners are patent trolls and all patent infringement lawsuits are frivolous.

While Goodlatte will receive high praise in some circles for his efforts to end frivolous lawsuits he is no friend to innovators. Goodlatte not only supported, but also introduced the Innovation Act during the 114th Congress, which would have made significant modifications to U.S. patent laws that were seen as unfavorable by many innovators and independent inventors. My personal view on the Innovation Act is that it would have been a disaster. Of course, the Innovation Act was fought back in both the House and Senate during the 114th Congress, and it seems that it will need to be fought back again during the 115th Congress.

Still, despite Goodlatte’s pledge to move forward on patent litigation reform during the 115th Congress, the facts are likely against him and his allies in Silicon Valley. Even though the popular press, urged on by Silicon Valley elite companies that make up the so-called infringer lobby, continues to write that frivolous patent litigation is a problem, statistics paint a very different picture. Indeed, patent litigation is sharply declining in America, with the number of patent cases dropping 22% in 2016. Indeed, the continuing decline of patent litigation is one of the reasons why the Innovation Act stalled during the 114th Congress. With patent infringement litigation dropping even further since the Innovation Act last failed (see hereand here) it seems unlikely to regain the widespread support that the bill enjoyed in the House in December 2013. And even after a vote of 325-91 in favor of the Innovation Act in December 2013, the bill still failed in the Senate. Thus, it seems likely that the Innovation Act is dead, as are any similar widespread attempts to make patent enforcement difficult or impossible. Having said that, however, you can certainly expect Goodlatte and his allies to try.” 

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