GUEST COLUMN, Lamar Smith, retired member of Congress
Americans are fed up with the slowing economy and are taking their frustrations out on the incumbent party. Democrats romped to victory in last year's off-cycle elections and may do so again in the midterms this November.
Patent reform might not seem like an obvious tool for calming voters' economic anxieties. But the truth is, patent protections are essential to spurring the kind of innovation that creates jobs, grows the economy, and brings down prices.
Strong, consistently enforced patents allow inventors to profit from their original creations. They also provide investors with the confidence they need to make big bets on experimental technologies, processes, and business ideas.
By one estimate, intellectual property-intensive industries are responsible for more than 40% of all economic activity in the United States and support over 62 million jobs. Workers in sectors that rely heavily on patents and other IP protections also tend to be paid more, on average, than their counterparts in non-IP-intensive industries.
And so, if the president is looking for ways to strengthen job prospects, bring down prices, and put America's economy on a surer footing, addressing some of the most serious problems in our patent system is a good place to start.
Consider the difficulties that small inventors face when seeking to protect their IP from theft. Courts rarely issue injunctions to stop patent infringement. Even when a startup proves a competitor has misappropriated patented technology, it often can't stop the theft to prevent the competitor from destroying its business. It can only seek damages after the fact.
Or consider how several Supreme Court decisions have caused confusion on which types of inventions are even eligible for patents, even if they meet the standard criteria of being new, non-obvious, and useful. Those decisions have created an enormous amount of uncertainty and depressed billions of dollars of investment in certain sectors, such as medical diagnostics.
Or take the Patent Trial and Appeal Board (PTAB), which I helped create when I was in Congress more than a decade ago to serve as a streamlined alternative to courtroom litigation. Since then, powerful companies have treated the PTAB as an additional rather than an alternative forum, frequently challenging the patents of smaller, innovative rivals in court and before the PTAB. As a result, startups are forced to expend enormous resources and time defending their IP rights in multiple venues.
The best thing the Administration can do to help inventors would be to urge congressional leaders to pass legislation to solve these problems.
The PREVAIL Act is a bipartisan bill designed to prevent the PTAB from reviewing patents already being disputed in court, among other changes.
The Patent Eligibility Restoration Act, or PERA, is another bipartisan bill designed to restore the patent eligibility standards to what they were before the Supreme Court confused those standards.
And the RESTORE Patent Rights Act is intended to make it easier for inventors to obtain court injunctions that would halt patent infringement. Startups and small businesses in particular need better tools to protect their inventions and ideas from theft to boost the willingness of investors to invest in them.
Rising costs and a lackluster job market have left many Americans feeling the pinch. The administration can help assuage these worries and encourage the kind of risk-taking and entrepreneurship that creates jobs and lowers prices by fortifying America's patent system.
Lamar Smith represented the 21st Congressional District of Texas in the U.S. House from 1987 to 2019. This piece originally ran in the Washington Examiner.
