Selectively Targeting the Patent Troll Problem
Proposal by Varun A. Shah
Article 1, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. The exclusive right to Writings forms the basis of U.S. Copyright law and the exclusive right to Discoveries forms the basis of U.S. Patent law. It follows that U.S. Copyright law and U.S. Patent law must be drafted in accordance with the explicitly noted Constitutional goal of promoting the progress of Science and useful Arts. Any laws that result in demoting the progress of Science and useful Arts are not aligned with the Constitution.
Current U.S. patent law permits the transfer of these exclusive rights as an incentive to the original Authors and Inventors for promoting the progress of Science and useful Arts. However, the transferability of these exclusive rights, without restriction or constraints, has created a patent ecosystem which often demotes the progress of Science and useful Arts. Specifically, transferability without any restrictions or control as permitted by current U.S. patent law has resulted in patents being obtained by patent trolls. Patent trolls initiate patent infringement lawsuits generally without any conclusive research as to whether a defendant actually infringes the patent. Patent trolls rely on the threat and the known high cost of litigation to extort settlement payments from many defendants. The defendants range from startups to highly successful Fortune 100 companies.
The results are catastrophic. Startups with their first round of seed funding are shut down due to litigation costs. Fortune 100 companies are forced to divert resources away from Research & Development that would directly promote the progress of Science and the useful Arts. As a true believer, participant, and supporter of the U.S. patent system, I propose modifying U.S. patent law to recalibrate it to promote the progress of Science and useful Arts. Specifically, I propose placing restrictions and control upon transfer of patents such that the rights of the original innovators are not affected. My proposal includes applying restrictions and control for alleging patent infringement (such as those defined in the Innovation Act stalled in the Senate) unless the entity asserting the patent is one of:
1) The original inventor.
2) An employer of the inventor to whom the inventor was obligated to assign the patent to.
3) A college or university to whom the inventor was obligated to assign the patent to.
4) A third party who acquired the patent in the sale of an established line of business with a minimum annual revenue (exact amount to-be-determined) and where all prior patent transfers were associated with a sale of an established line of business.
This proposal discriminates against patent trolls which are a burden on the U.S. patent system in favor of innovative companies which work to promote the progress of Science and the useful Arts. Patent trolls do not generally acquire patents in a sale of an established lines of business, but rather acquire patents individually for the sole purpose of asserting the patents. As a result, patent trolls do not fall into any of the above categories.
I expect this proposal to overcome the objections by innovative companies in the pharmaceutical and biotech industry such as Johnson & Johnson, and companies in the high-tech industry such as Qualcomm that have currently blocked the Innovation Act in the Senate due to the effect on their patent assertion rights. If you are in support of this proposal, I encourage you to reach out to Senator Reid and indicate your support for the proposal.