Monday, June 15, 2015

Should conservatives back patent reform?

Steven Titch writes in favor of patent reform at TheHill:

The push for patent reform is truly bipartisan, and, as R Street Institute’s Zach Graves pointed out this week, was initially driven by Republicans with support from conservative Democrats. Recall it was ultra-liberal Harry Reid who killed patent reform last session.

Lastly, the opposition from the Right wants to characterize this as the weight of crony capitalism coming down on the romantic notion of the solitary inventor in a garage. The true situation isn't as sexy: patent trolling is primarily a business-to-business problem that nonetheless is adding costs that are consuming start-up capital and/or leading to increased costs for consumers down the line. Prosaic to be sure, but free market advocates are certainly capable of grasping how frivolous litigation can affect macro issues.

Opponents are getting nervous because it looks like we are on track for patent reform. If principled conservatives are alarmed by parts of the bills that come off as too heavy handed against property rights, then its best to keep supporting the work and ideas of reform-minded lawmakers who also are sympathetic to them. Abandoning the debate, and those best positioned to argue on the behalf of market-based solutions, only raises the likelihood of a bad law resulting.


Curiously, there is no mention of "loser pays" in the Titch piece.

There is also no mention of Senator Cornyn's efforts at compromise in the last session. From an IPBiz post on 28 March 2015:

**As to Schumer's position in 2014, note the fee-shifting provision in the Cornyn-Schumer compromise bill of 2014 was less extreme than that of the Goodlatte Innovation bill:

Fee shifting: The draft language, rather than making fee-shifting presumptive, would simply lower the current burden from “exceptional case” to “objectively unreasonable.” The prevailing party would have to move the court to award fees at the end of the case and prove that the conduct or positions of the losing party were not objectively reasonable. The court would also have discretion to deny such a motion under “special circumstances” even if the conduct/positions were not objectively reasonable. This is probably the most significant and positive change in the draft compromise, as it avoids the many problems associated with presumptively awarding fees to the winning party. Cornyn and Schumer nicely capture this balanced spirit in their introductory “Sense of Congress” language, where they proclaim their intention to “strike a more appropriate balance between protecting the right of a patent holder to enforce his patent, including through litigation, on the one hand, and deterring abusive patent litigation and abusive threats thereof on the other -

For the accurate conservative position, one should follow statements of Congressman Rohrabacher.


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