Ever wonder why the US now turns the clock back one hour right
after Halloween? According to a book by Michael Downing, it's
largely due to the candy lobby that spent much time and money giving
out candy-filled pumpkins and making election donations to members
Similar forces are at work in another Washington debate that
threatens to turn back the clock on innovation as early as February:
the so-called Patent Reform Act of 2007. Despite the fact that
improvement in some fashion is needed, this sweeping reform, if made
law, will undermine the core of the patent system in the United
States. It will mean weaker protection for small inventors,
university researchers, and entrepreneurs across America.
The frequent characterization of the issue as a struggle between
big pharmaceutical companies (against this reform) and the high-
tech computer industry (for this reform) is not quite right. In
fact, just a handful of high-tech giants - Microsoft, Intel, Cisco,
Oracle, and Dell - support the proposed reforms. Small high-tech
companies - the true innovators of this industry - overwhelmingly
reject them as do innovators from other industries.
There are several serious problems with the current bill. First,
the proposed changes weaken the protection patents are meant to
afford by introducing an "apportionment of damages" provision that
chips away at the economic value of patents. By diminishing damages
that would occur from infringing a patent, it devalues all issued
and future patents.
Second, the bill creates a mechanism for endless post-grant
oppositions. This would throw a cloud of uncertainty over all issued
patents, further diminishing the incentive to innovate and invest in
the manufacturing of new products. Many inventors, exhausted from
defending the validity of their patent repeatedly, will be forced to
abandon their patents.
The bill also proposes changing from the American "first-to-
invent" system, which favors true innovators, to a European-style
"first-to-file" regime, which favors the winners of a sprint to the
patent office. Large corporations, with their legions of patent
attorneys on staff, would undoubtedly have the upper hand against
small inventors and university researchers in this race.
Other proposed changes take the teeth out of patents and make
rights harder to enforce. For example, they make it more difficult
to prove willful infringement; diminishing the threat of treble
damages will only encourage infringement and promote litigiousness.
The proposed changes in US patent law will make it easier for
offshore copycats to bring their pirated goods into the US with