Death by a Single Cut

Yesterday at the USPTO I had the privilege of serving on the opening panel of the 12th Annual Advanced Patent Law Institute sponsored by The Texas University School of Law, Antonin Scalia Law School at George Mason University and the USPTO itself. The panel was organized and moderated by Rob Sterne and former CAFC CJ Paul Michel. It included Damon Matteo, Paul Stone, Peter Detkin and Paul Evans, all of whom are prominent, accomplished investors in innovation. Our audience of more than 200 advanced practitioners, judges, and USPTO personnel, included USPTO Director Michelle Lee. For the remainder of the two-day conference, its emphasis would be to sharpen its attendees’ legal skills. But for its first 75 minutes, patent non-investability was the panel’s sobering focus.

Rapidly declining patent reliability, enforce-ability, and now eligibility have combined to create a collective uncertainty that is killing our nation’s entire innovative ecosystem. This panel’s emphasis was not on the US patent system’s legalities. It focused on another keystone component of that ecosystem… investment in the development promising patented products and services. Legal uncertainties can stall and even kill a patent system over time and obviously influences such investment. But ecosystems are integrated and interdependent. An ecosystem dies when any of its keystone components fail. Whatever one thinks about the patent system’s health and its uncertain future, the present fact is the system’s keystone investment component has failed. The panel was not presenting an economic analysis and prediction. There were no academic graphs and charts. The panel’s investors spoke authoritatively about present investment realities. Their message was as clear and simple as it was startling.

The situation is far worse than most patent practitioners realize. The system’s recovery will not occur by blocking more legal harm in Congress, at SCOTUS and the USPTO. The system is failing because invention must be developed before innovation is possible and it cannot be developed without the life-giving energy of investment. The panel flatly stated to the patent bar’s advanced attendees that they must unite now to actively repair the system’s sinking “ship”. It makes no sense to sharpen their navigation skills if they are on a sinking ship. Patent practitioners can no longer leave patent policy to wonks in Washington. The system’s recovery is up to them.

University TTO’s now realize commercialization is becoming more difficult by the day. They have engaged with their home state congressional delegations. Inventors have engaged as well because they cannot attract investment needed to develop their inventions. But saving the system cannot be left to universities and inventors, especially if the patent bar continues to be silent. Biopharma cannot do it by themselves.  Patent bar at this stage deafening and deadly. The job at hand cannot be left to divided DC trade associations. Nor can it be assumed that simply blocking Congress from inflicting further harm will save it our patent system. The entire patent bar, including judges, USPTO personnel and practitioners must now collectively focus on true patent reform that will strengthen it. Conference attendees therefor must focus as intently on patent policy as they are focused on advancing their individual patent skills. The patent bar must act now. The “thousand cuts” of patent law’s legal uncertainties can lead to the eventual demise of our US patent system. Investment capitol withdrawal however is a single deadly slice from which there is no recovery.

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