Dear Congress: Don’t Invite the Patent Trolls Back

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A US patent can be worth billions of dollars even when the underlying idea is completely uninventive. The relationship between what is patentable and what is a valuable invention is at best fuzzy, and at worst random. As such the Senate will be conducting hearings: The State of Patent Eligibility in America. Part 1 was today, June 4th (you can watch it here). Part 2 will be tomorrow, June 5th.

Congress wants to fix this, which is a good thing. But be careful what you ask them for.

There is no debate that patent trolls have extracted billions of dollars from the innovation economy by shaking-down small companies over patented non-inventions. Post a menu online for your restaurant - get sued. Post a little map with pins showing your HQ, pay a license fee. Add the words “on a computer” to an old idea, and you can get a patent. Or at least you could until the Supreme Court said “Enough” and forced us all to re-read the law and apply it properly. The “Alice” case was the shift we needed to tip the scales in favor of legitimate inventors and against the trolls.

There is always a downside to re-interpreting the rules. The Alice decision had impacts that went beyond patent trolls. Pharma, for example, is an industry where it takes millions of dollars to bring a valuable treatment to market. Without patents, it can be hard to build a business case for investment. Alice made it harder to patent gene-specific treatments (but opened the door a crack for drug competition). It was inevitable that some in the industry would look to reset the rules again.

I have sympathy for the drug companies - they certainly deserve a return on investments in new cures. But not at the expense of bringing new life to patent trolls. You don’t fix something by breaking it a second time.

We’re working with United For Patent Reform and others to urge Congress NOT to unleash the trolls again. Fixing things for pharma can’t come at the cost of main street businesses, small entrepreneurs, and the tech sector.

I believe that Congress wants to do what’s right for America. But I know that a few powerful people can make it look like their solution is the obvious one. So send your local congressperson a friendly note and remind them that bad patents kill small business. You can also remind them that developers vote too.