One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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We (almost) all know the fairy tale.
Goldilocks breaks into the Three Bears’ house. She tries their food and their furniture. Some were too hot and too hard – some too cold and too soft. She was on a mission of sorts – looking for the things that were “Just right.”
This is Washington D.C. – just as anti-Reality as any fairy tale. But with an incessantly overreaching, $4-trillion-a-year government – rarely are things too soft.
Government is a huge, unwieldy hammer – it over-slams just about everything at which it takes aim. Goldilocks’ perpetual assessment – “Too hard.”
But occasionally – and it’s very occasional – government gets it right.
There are currently four patent “reform” bills being considered by Congress. Patents are a way innovators protect their ideas – which is how we as a society protect our continued economic viability. If people who invent cool stuff can’t protect their cool stuff from thieves – they’ll stop inventing cool stuff.
In the name of stamping out “patent trolls,” DC’s hammer is prospectively about to come down on Patent World – in one of four ways.
Let’s give each the Goldilocks acid test.
This is fundamental transformation. A revolutionary, huge overhaul of the entire patent system. In very bad ways.
Falsely in the name of “lawsuit reform,” it makes it in many ways much more expensive for and indeed prohibitive of innovators to protect their innovations in court.
Many, many times a patent holder is a Little Guy who’s developed an idea in his basement or garage – and the thief is a mega-company like Google (and they steal a LOT). Making courtroom adjudication more difficult and more expensive doesn’t really bother the deep-pocketed thief – but it absolutely cripples the Little Guy inventor.
And the Innovation Act doesn’t at all address “demand letters” – which is the only real harm to which these anti-patent-protection revolutionaries can point. Bad faith “demand letters” are when bad-acting patent holders shotgun legal correspondence to anyone doing anything remotely connected to their patent – in the hopes that the recipients will settle in cash to make them go away. This bill does absolutely nothing thereon.
Goldilocks Rating: Way, WAY too hard.
This is – like the Innovation Act – fundamental transformation. In many of the same, terrible ways – in most instances just a little less terrible.
The Patent Act does actually address bad faith demand letters – but in a overly ham-handed, egregious way that too greatly favors the thieves over the patent holders – including all the legitimate ones.
Goldilocks Rating: Way too hard.
This is not fundamental transformation. It specifically reforms demand letter abuse – without total system disruption.
It gives the Federal Trade Commission (FTC) the authority to deal with bad demand letter writers – on an a la carte basis. The FTC examines each case as it comes – rather then preemptive, all-encompassing legislation where every single patent holder trying to protect their intellectual property is assumed to be acting in bad faith.
And that’s about it. With DC – less is almost always more.
Goldilocks Rating: Just right.
This isn’t fundamental transformation either. It reforms demand letter abuse – and cleans up some previous DC mistakes.
The last patent reform bill – the America Invents Act – established overly broad standards for when and how patents can be challenged at the patent office. This bill tightens them.
And it uses the TROL Act language that ends abusive demand letters.
Goldilocks Rating: Just right.
Not one but two good options. From Washington, D.C.
That’s more than Goldilocks found in her Three Bears break-in fairy tale.
See – DC doesn’t always have to be Fantasy Land.