Dear Congressional Representative:
We haven’t spoken before–I was President Obama’s student in Constitutional Law (University of Chicago School of Law, 2005).
I am writing you, because our patent system is broken, and the current system and proposed legislation (e.g., Innovation Act–HR 3309) fail to address our needs. I propose a solution that can meet our needs (http://www.investinip.com/how-do-we-achieve-patent-reform/).
I would like for you to consider the ideas proposed here, and bring this up for discussion amongst policy decision-makers.
Our system is broken and, worse, we are failing to attack the fundamental problem behind patent trolling. Instead of fixing trolling, proposed legislation will serve to weaken the American patent regime, undermining its ability to fulfill its Constitutional mandate. The effect will be to chill the incentive to invest in technological advances and entrepreneurial endeavors.
We must consider all perspectives before we make a decision to pass rushed bills, the economic ramifications of which have not been properly explored.
Admittedly, I am a troll–I monetize patent assets and have made a career of it (http://www.investinip.com/about-invest-in-ip/).
I’m here to tell you two things and ask for one: (1) the current legislation won’t stop trolling activity, (2) the current legislation and current-day system fail to meet a Constitutional threshold, and (3) there is a better solution that is incredibly simple, yet profoundly impactful to promote scientific and technological progress, as well as the Founding Fathers’ intent behind the Constitution’s Patent Clause.
(1) Current legislation won’t stop trolling
Now the trolling strategy will adjust to filing more patents in a single lawsuit–this is a power-in-numbers approach. The more claims you assert, the greater the chances of one sticking.
If one valid claim is found to infringe, then the well-funded, multi-patent plaintiff can offset its own fees and go long for a full-scale jury verdict.
The current legislation won’t stop trolling, because the well-funded trolls will remain, they will file multi-patent lawsuits, and they will be willing to go the distance.
Defendants still face the risk of high patent-exposure, and will now be conflicted in terms of whether to fight to recover fees or pay to settle and avoid risk.
Hence, the current legislation will not solve the problem–litigation and trolling will continue, while smaller in quantity, it will be larger in scale and with greater risk.
(2) Current legislation fails to meet a Constitutional threshold
A patent owner’s “right to exclude” is a Constitutional protection afforded to all patent holders. This is the fundamental backdrop that incentivizes investments into new technology and entrepreneurial endeavors–this is the backbone that supports scientific progress.
With a loser-pays system, it would undermine an individual’s or entity’s Constitutional right to enforce a valid and infringed patent against a multinational, well-funded corporation. To illustrate, the proposed loser-pays system will chill investments into startup ventures and technological advancements, because the underlying patent assets would be more risky to legitimately enforce.
(3) The solution?
We need to fix our patent monetization system, not weaken our litigation system.
To start, what is the fundamental problem with our patent system?
Answer: our only recourse for monetization is through litigation. This is problematic for several reasons, which I lay out here: http://www.investinip.com/how-do-we-achieve-patent-reform/
But instead of weakening the litigation system to curb litigation abuse, why don’t we create a better monetization system?
The model is simple–in fact, there are numerous asset classes monetized in the free market, the models for which provide a well-proven templates.
And solution is incredibly simple, yet profound: an open, free-market patent exchange.
Notably, such an exchange furthers our Founding Fathers’ intent behind the Constitution’s Patent Clause (see, e.g., http://www.investinip.com/patent-exchange-furthers-the-founding-fathers-intent-part-1-of-4/)
What is a patent exchange? Why a patent exchange? You can read more here: http://www.investinip.com/how-do-we-achieve-patent-reform/.
I am writing to you, because you swore to uphold the Constitution, and I believe it is your Constitutional duty to consider this perspective.
Not only will the proposed legislation fall short of meeting its real objective of curbing troll activity, but there is a downside we must consider, and it is our Constitutional responsibility to reflect upon its collateral effects.
I ask that you read the materials provided here, and help other policymakers consider a patent solution from another perspective–a more holistic perspective.
Thank you for your consideration.
Best,
Gau
2 Comments
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Author
The following Representative’s received the above letter (please excuse typos, these are my notes taken while sending blast emails at 4 AM CST last night):
Martha Roby–Alabama
Spencer Bachus–Alabama
Eni S.H.–American Samoa
Ed Pastor–Arizona
Kyrsten Sinema–Arizona
Tim Griffin–Arkansas
Tom McClintock–California
Ami Bera–California
Jackie Speier-California
Zoe Lofgren–California
Devin Nunes–California
Judy Chu–California
Adam Schiff–California
Brad Sherman–California
Diana DeGette–Colorodo
Jared Polis–Colorodo
Ed Perlmutter–Colorodo
John Larson–Colorodo
Joe Courtney–Colorodo
Jeff Miller–Florida
Steve Southerland–Florida
Corrine Brown–Florida
Bill Posey–Florida
Thomas Rooney–Florida
Ted Deutch–Florida
Lloyd Doggett–Texas
Jack Kingston–Georgia
Phil Gingrey–Georgia
Raul Labrador–Idaho
Mike Quigley–Illinois
Cheri Bustos–Illinois
Bruce Braley–Iowa
Dave Loebsack–Iowa
Lynn Jenkins–Kansas
John Fleming–Louisiana
Chellie Pingree–Maine
John Sarbanes–Maryland
Richard Neal–Massachusetts
Bill Keating–Massachusetts
Tim Walberg–Michigan
John Conyers Jr.–Michigan
Gary Peters–Michigan
Erik Paulsen–Minnesota
Betty McCollum–Minnesota
Emanuel Cleaver–Missouri
Billy Long–Missouri
Steve Daines–Montana
Jeff Fortenberry–Nebraska
Lee Terry-Nebraska
Leonard Lance–New Jersey
Bill Pascrel–New Jersey
Rodney Frelinghuysen–New Jersey
Rush Holt–New Jersey
Pete King–New York
Louise Slaughter–New York
Mel Watt–North Carolina
Marcy Kaptur–Ohio
Jim Renacci–Ohio
Jim Bridenstine–Oklahoma
Greg Walden–Oregon
Earl Blumenauer–Oregon
Chaka Fattah–Pennsylvania
Patrick Meehan–Pennsylvania
Joe Pitts–Pennsylvania
Tim Murphy–Pennsylvania
Joe Wilson–South Carolina
Kristi Noem–South Dakota
Jim Cooper–Tennessee
Jim Matheson–Utah
Peter Welch–Vermont
Bobby Scott–Virginia
Gerry Connolly–Virginia
Jim McDermott–Washington
David McKinley–Washington
Gwen Moore–Wisconsin-
Yes get the word out!!
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