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| U.S. Representative John Conyers, Jr. |
“There are few economic issues our Committee or
this Congress will face that are more important than whether and how to
reform our patent laws. Intellectual property – principally patents –
are responsible for nearly one third of all jobs
in the U.S. economy. Our patent system, while not perfect, is the envy
of the world and perhaps the most significant driver of growth in our
economy.
“As we consider patent legislation, I would like to
offer three points for consideration. First, I believe the issues of
non- practicing entities or so-called patent ‘trolls’ present some
unique problems that are worthy of congressional
attention. There is a disconnect when shell corporations -- with
little or no assets -- can threaten thousands of small end users with
ill-conceived patent litigation over ordinary business practices. If we
don’t know who these shell companies are; if the
shell companies have no operating businesses or assets; and if they are
given free license to engage in endless and costly discovery, we have a
problem that requires legislation.
“But at the same time, we need to be careful in
addressing these problems. Our first rule should be to make sure we do
no harm to our patent system or take any actions which unintentionally
discourage innovation or increase litigation.
As the former Director of the Patent and Trademark Office David Kappos
reminds us, ‘we are not just tinkering with any system here; we are
reworking the greatest innovation engine the world has ever known,
almost instantly after it has been significantly overhauled.
If there were ever a case where caution is called for, this is it.’
“In this regard, I don’t see any reason we should
be considering amending the fee shifting statute when the Supreme Court
has just agreed to take up this very issue. Similarly, I see no rush to
expand the use of ‘business method patents’
when the PTO and the courts are just now beginning to review cases
brought under the law we just passed.
“Second, any changes we make must be carefully
balanced and consistent with our principles and constitutional
imperatives. For 80 years we have asked our federal judges – the
experts on litigation – to develop rules for their own court
rooms. That system has worked well and I see no reason to abrogate the
principle of separation of powers now.
“And if we are going to consider crafting new rules
on discovery, stays, and joinder, we should insist that the rules work
the same for all parties – plaintiffs and defendants. Nor should we be
crafting a series of special carve outs from
the legislation for the pharmaceutical industry. The last thing we
need to do is create two systems of patent law – one for pharmaceuticals
and one for everybody else.
“Third, we cannot lose sight of the single most
important problem facing our patent system today – the continuing
diversion of patent fees. The most effective step we can take in
responding to abusive patent litigation is making sure
poor quality patents are not issued to begin with. To do that we need
to give our examiners the resources they need to review and analyze the
hundreds of thousands of complex and interrelated patent applications
they receive every year. That is why yesterday,
I along with Representatives Watt, Issa and Collins, introduced
bipartisan legislation – the Innovation Protection Act – which does
exactly that on a permanent, statutory basis. This will apply
regardless of the sequester or any future shut downs.
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