Freedom Line Blog

This week, Senator Elizabeth Warren (D – Massachusetts) and a group of fellow liberals submitted a letter to the United States Department of Health and Human Services (HHS) demanding that the federal government employ so-called “march-in” rights under the Bayh-Dole Act of 1980 to disregard private patent rights on the critical cancer drug Xtandi.

Here’s why that’s a terrible and potentially deadly idea that the HHS, other lawmakers and the American public must oppose.

Simply put, disregarding patent protections for pharmaceutical innovators will bring innovation to a halt and deprive Americans of lifesaving drugs.  America currently produces two-thirds of all new drugs worldwide, and that’s because our nation honors and protects patent rights, it doesn’t violate them.

It’s especially outrageous that Senator Warren and her cohorts seek to leverage the Bayh-Dole Act of 1980 to facilitate their scheme.  The Bayh-Dole Act was passed in order to extend patent rights to universities and nonprofit research entities whose research was assisted by federal funds, not weaken them.  Prior to Bayh-Dole, very few innovations partially funded by federal dollars were ever commercially pursued – only 390 in the year prior to its passage.  Four decades later, however, that number approaches 7,500, with over 420,000 inventions and 13,000 new startup enterprises formed.

That explains why The Economist magazine labeled Bayh-Dole the most important bill of the past half-century:

Possibly the most inspired piece of legislation to be enacted in America over the past half-century was the Bayh-Dole Act of 1980.  Together with amendments in 1984 and augmentation in 1986, this unlocked all the inventions and discoveries that had been made in laboratories throughout the United States with taxpayers’ money.”

Alarmingly, however, this groups seeks to undermine patent rights for Xtandi by exploiting a “march-in” provision within Bayh-Dole to empower the federal government to commandeer new drugs and license the patents on inventions partially funded by federal dollars to third parties.   According to their flawed logic, the market prices of some drugs render them insufficiently available to the general public, and on that basis they encourage federal bureaucracies to forcibly license those drugs’ patent rights to other third parties for manufacture and sale.  That would constitute a frontal assault against private pharmaceutical innovators, disregarding their patent rights and the enormous investments they’ve made over years and decades to conceive, perfect, produce and distribute those drugs.  It would also contravene the statutory terms of Bayh-Dole itself.

Indeed, Senators Birch Bayh and Bob Dole themselves confirmed that the law bearing their names did not intend or allow cost to become a mechanism for imposition of de facto drug price controls:

Bayh-Dole did not intend that government set prices on resulting products.  The law makes no reference to a reasonable price that should be dictated by the government.  This omission was intentional;  the primary purpose of the act was to entice the private sector to seek public-private research collaboration rather than focusing on its own proprietary research.”

That’s precisely why the National Institutes of Health (NIH) has rejected every one of the “march-in” petitions that it has received during the Bayh-Dole Act’s existence.  It has consistently and correctly ruled that attempts to leverage price allegations to justify march-in would undermine the very goal of the act and ultimately harm American consumers.

People like Sen. Warren and her cohorts nevertheless claim that federal funding toward pharmaceutical research justify government march-in intrusion, falsely asserting that pharmaceutical innovators somehow enjoy a free ride at taxpayer expense.   That’s false.

Private funding for research and development actually dwarfs public funding.  According to the NIH itself, private sector R&D far exceeds NIH funding throughout recent years and decades.  In 2018, as another example, the NIH spent $3 billion on clinical trials involving new or existing drugs, compared to $102 billion in R&D by the U.S. biopharmaceutical industry.  Indeed, the pharmaceutical industry stands as the single largest source of business R&D funding in the U.S., accounting for 17.6% of all U.S. business R&D.  The next-closest counterpart is the software sector at 9.1%, with the automobile industry at 5.9% and the aerospace industry at 4.1%.

Senator Warren and her cosigners also allege that inflation somehow justifies their demand, but the fact is that drug prices significantly trail overall inflation.

Accordingly, the facts show that strong U.S. patent protections and the Bayh-Dole law promote pharmaceutical R&D investment, and there’s simply no legal or logical basis for advocating march-in regarding Xtandi.  Pharmaceutical innovation demands billions of dollars in sunk costs of investment, not to mention potential product liability lawsuits for any errors.  Strong patent protections, which Bayh-Dole codifies, help ensure that those costs and risks will be fairly and sufficiently rewarded.  They provide innovators and investors the incentives to create pharmaceuticals that save millions and even billions of lives worldwide.

The demand by Senators Warren and her cosigners would dangerously jeopardize that.

When pondering the origins of American Exceptionalism, and what makes us the most innovative, prosperous nation in human history, look first to our tradition of protecting intellectual property (IP) – patent, copyright, trademark, and trade secret property rights.

After all, other nations match or even exceed the U.S. in free market rankings (24 nations in the latest annual Index of Economic Freedom, in fact).  No nation, however, can match us for sheer innovation.  America accounts for less than 5% of the world’s population, and even with the world’s largest economy we account for under 25% of the global economy.  In contrast, no nation can match our scientific innovation, from flight to space exploration to the internet.  Nor can any nation match our artistic leadership, from the film industry to television to music, or claim as many instantly recognizable trademarks, from Coca-Cola to Apple.

Year after year, that’s why the U.S. leads global rankings of IP protection.

Perhaps most conspicuously, the U.S. accounts for fully two-thirds of all new lifesaving pharmaceuticals introduced to the world each year.  In an era increasingly reliant on pharmaceutical treatments for everything from Covid to cancer to Alzheimer’s, that is a leadership of which we should remain both proud and protective.

Inexplicably, however, some voices seek to undermine that IP leadership position.  A group called I-MAK offers the latest assault, with a “study” entitled “Overpatented, Overpriced,” which attempts to show “how excessive pharmaceutical patenting is extending monopolies and driving up drug prices.”  We employ scare quotes around the term “study” because I-MAK’s work has been previously debunked and exposed by leading IP scholars like George Mason University and Antonin Scalia Law School Professor Adam Mossoff and Senator Thom Tillis (R – North Carolina) for using defective and non-transparent supporting data.

Indeed, we highlighted earlier this year how drug prices have remained far, far below overall inflation.  Efforts like I-MAK’s would only end up suffocating drug innovation, not reducing prices, as we’ve also highlighted:

Of all new cancer drugs developed worldwide between 2011 and 2018, 96% were available to American consumers.  Meanwhile, only 56% of those drugs became available in Canada, 50% in Japan, and just 11% in Greece, as just three examples.  Patients in nations imposing drug price controls simply don’t receive access to new pharmaceuticals as quickly as Americans, if they ever receive them at all.”

Even the World Health Organization (WHO) acknowledges that overseas consumers’ lower access to pharmaceutical innovations stems from their governments’ imposition of price control regimes:

‘Every time one country demands a lower price, it leads to lower price reference used by other countries.  Such price controls, combined with the threat of market lockout or intellectual property infringement, prevent drug companies from charging market rates for their products, while delaying the availability of new cures to patients living in countries implementing those policies.’”

The irrefutable reality is that U.S. patent protections explain why we produce the overwhelming share of new drugs worldwide, including the Covid vaccines.  Efforts like I-MAK’s latest “study” continue a bizarre ongoing affront to property rights, the rule of law and IP.  If successful, they would only mean fewer future vaccines and treatments, and must be flatly rejected.

Happy World Intellectual Property (IP) Day!

Among the many elements explaining American Exceptionalism in worldwide innovation, power and prosperity, nothing stands above our enduring legacy of protecting IP – patents, copyrights, trademarks and trade secrets.

Since America’s founding, we’ve protected IP like no other nation before or since.  Our Founding Fathers deliberately inserted text protecting IP rights into Article I of the Constitution, which reads, “Congress shall have the Power … 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.”  And as James Madison explained in the Federalist Papers while advocating ratification of the Constitution, protecting IP respected the natural right of individuals to enjoy the fruits of their labors, while also serving the public good by encouraging innovation.

The assurance that one’s creations will enjoy legal protection in turn promotes creative activity, which is why Abraham Lincoln — himself a patent attorney — noted that America’s IP protections, “added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”

Consequently, no nation spanning the entirety of human history even approaches America’s record of patented invention, from the telephone to the airplane, from lifesaving pharmaceuticals like the polio vaccine to the internet.   No society remotely rivals our copyrighted artistic influence, whether in the form of motion pictures, television programming or popular music.  No nation’s trademarks stand recognized in the way that the Coca-Cola or Apple logos are instantly identified across the world.  A direct relationship exists between our tradition of IP protection and our unrivaled success in innovation and prosperity.

That’s why we at CFIF are pleased to join over 100 other free-market, conservative and libertarian organizations here in the U.S. and across the globe in celebrating World IP Day, as highlighted by our collective open letter to World Intellectual Property Organization (WIPO) Director-General Daren Tang:

IP-intensive industries play a central role in job creation. In the United States, IP-intensive industries account for 44 percent of total employment, and jobs in these industries come with a 60 percent weekly wage premium over jobs in other industries… 

Intellectual property protections are also important for promoting economic growth.  The United States Patent and Trademark Office found that IP-intensive industries contribute $7.8 trillion USD to the U.S. economy, or nearly 41 percent of total U.S. DP.  The U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) further reported that these innovative industries account for over 40 percent of U.S. economic growth.  The role of robust IP protections is clearest when contrasting country scores and their World Bank income classification.  According to the 2021 International Property Rights Index, high-income countries’ scores were 33.5 percent stronger than the average score of upper-middle-income countries and 66.1 percent stronger than the average score of low-income countries.  This IP protection gap must be closed.”

Unfortunately, too many political leaders here in America and across the world fail to respect the role of IP in boosting innovation and wellbeing, and actively seek to undermine it.  We cannot let that occur, lest we all suffer.  As we conclude in our coalition letter, “On this World Intellectual Property Day, we urge WIPO, along with other international organizations, national governments, and policymakers around the world, to continue to promote policies which strengthen intellectual property protections and ensure that a healthy innovation environment can thrive for today’s youth and for generations to come.”

In our Liberty Update this week, we emphasize the critical role that strong patent rights play in U.S. pharmaceutical innovation.  Although the U.S. accounts for just 4% of the world’s population and 24% of the global economy, we account for an astonishing 2/3 of new drugs introduced worldwide, as this helpful image illustrates perfectly:

Patent Rights = Global Pharmaceutical Innovation Leadership

Strong patent protections, along with our more market-oriented approach, have made America the world leader in pharmaceutical innovation.  At a moment like this amid the coronavirus pandemic, it’s more important than ever to protect that legacy and oppose misguided efforts by some in Congress to undermine it.

At CFIF, we’ve consistently and unapologetically celebrated the central role of intellectual property (IP) rights – patents, copyrights, trademarks and trade secrets – in making America the most innovative, prosperous and powerful nation in human history.

Recent legal developments domestically, as well as growing focus upon Chinese IP malfeasance internationally, provide new emphasis on the importance of strong U.S. patent protections for American inventors, and highlight some increasingly obvious concerns regarding patent infringers exploiting the U.S. Patent Trial and Appeals Board (PTAB) for nefarious and selfish purposes.

A couple of weeks ago, patent holder plaintiff TQ Delta won on all eight counts in its first case in a series against 2Wire, Inc. over digital communication technology patents.  The win thereby sets a strong precedent of IP enforcement in what will be the first trial over its DSL patent porfolio.

In another recent example that will instantly resonate with parents as their children splash amid water balloons in their backyards this summer, a federal judge in Texas went to the rare extreme of actually doubling a multimillion-dollar jury award in favor of toy company Tinnus Enterprises, maker of “Bunch O Balloons” water balloon devices, in its patent infringement case against Telebrands.  More often, judges reduce jury awards that they consider excessive.  In this case, however, U.S. District Judge Robert Schroeder III held that the “serial infringement” of Tinnus’s patents and “flagrant” litigation misconduct merited more than doubling the original damages assessment.

The ongoing case of EagleView v. Verisk offers another salient example, a proverbial David innovator versus a Goliath infringer.  It also presents a perfect opportunity to correct a patent infringement injustice and offer a deterrent lesson to other potential patent violators of the consequences they will face.  In a nutshell, the plaintiff EagleView develops products that create 3-D models from aerial images of rooftops, from which insurers and construction companies can more accurately reach repair cost estimates.  After defendant Verisk unsuccessfully attempted to purchase EagleView in 2014, it allegedly shifted to using its subsidiary Xactware Solutions to infringing EagleView’s patented technology, triggering EagleView’s lawsuit for willful patent infringement.

Since that date, Verisk has employed an array of tactics to prevent EagleView’s lawsuit from reaching a jury, such as filing multiple petitions at the PTAB to invalidate EagleView’s underlying patents, which a federal Court of Appeals found “unpersuasive.”  Verisk has also petitioned the District Court multiple times to invalidate EagleView’s underlying patents, which the Court rejected similarly.  Now, Verisk has even resorted to joining the LOT Network, an openly anti-IP group that includes Google and other titans.  Hopefully, those tactics will be put to an end at long last.

All of this serves to highlight once again the need to protect IP, and patent rights specifically, at the legislative, executive and judicial levels.  At the Congressional and executive levels, legislation to address patent eligibility and U.S. Patent and Trademark Office (PTO) reform are critical, as CFIF has previously emphasized.  Additionally, abuse at the PTAB level must not be tolerated.  And at the judicial level, courts must hold patent infringers accountable, and grant injunctive relief to patent holders to halt violations.  By holding violators accountable, we can not only deter other potential violators, but also provide the incentive to innovators by creating greater assurance that their work will be rewarded and protected.

America’s tradition of leading the world in innovation and IP protection is ultimately at stake.

As we’ve constantly stressed, America’s history of leading the world in protecting intellectual property (IP) explains our status as the most inventive, creative and prosperous nation in human history perhaps more than any other factor.  That includes patent protection, where the U.S. has traditionally led the world.  Unfortunately, over the past eight years the U.S. has surrendered that status and plummeted to 12th in the U.S. Chamber of Commerce’s annual ranking of patent protections.

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U.S. Falls to 12th

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Obviously, many of the nations that now surpass us compete with us for jobs, investment and companies looking to innovate.  It’s therefore critical that we pass the STRONGER Patents Act currently before Congress, which CFIF enthusiastically supports, to restore our status as the world’s leader in patent protection lest we continue to lose ground.

So it appears that Google isn’t so opposed to intellectual property (IP) rights after all.  As long as it comes to its own, that is.

That’s the upshot of a high-profile federal lawsuit in which Google subsidiary Waymo accuses Uber of stealing its patents and trade secrets:

Waymo LLC, the self-driving car unit of Google parent Alphabet Inc., asked a federal court on Friday to halt Uber Technologies Inc.’s efforts to develop autonomous vehicles allegedly based on stolen design secrets.  The request was made to the U.S. District Court in San Francisco, following a suit filed last month accusing Anthony Levandowski, a former key manager in the Google self-driving car project, of taking 14,000 files before quitting last year to create a self-driving truck maker.  That startup, called Otto, was quickly acquired by Uber last year…

Waymo also filed an expert witness statement to the court from a laser-optics physicist who said he believes Uber’s laser-sensor technology uses Waymo’s trade secrets and infringes on its patents.  Waymo also added a fourth patent to its infringement claims in an amended suit on Friday.”

We take no position on the merits of the case, and maintain no particular grudge against Google as a company.  But its leading role in undermining IP rights in the United States, which made us the most inventive, artistically innovative and prosperous nation in human history, makes its current pleas a bit ironic, to put it mildly.

For years, we’ve been alerting readers to the endless, destructive litany of ways in which Google has undermined IP and public policy for its own benefit:

Here’s the irony.  Google somehow manages to arouse righteous legions of supposed anti-corporatist activists on its behalf (think sunshine anarchists and libertarians of convenience).  Yet Google itself exercises more self-serving, crony capitalist throw weight than any counterpart entity.

For example, consider so-called ‘Net Neutrality,’ with which conservatives and true libertarians are now familiar, that would suddenly empower the federal government to micromanage Internet service.  Google stands to gain enormous free-rider benefits, which explains why it is the chief corporate proponent of that proposed regulatory expansion.

Or think of Google Books, which posts the text of books that Google has gone ahead and scanned for viewing on its site.  Who cares if Google hasn’t first obtained permission from the actual authors and creators, right?  Google counts on the sheer cost and hassle of litigation to discourage individual creators against putting up a legal fight to protect their rights.

How does that square with ‘Don’t Be Evil?’

Or how about this?  Last August, Google voluntarily agreed to a $500 million fine for assisting Canadian online pharmaceutical sellers in accessing American consumers.  That amount is an entire Solyndra, and one of the largest forfeiture penalties in U.S. history.  Google fully admitted that it, ‘improperly assisted Canadian online pharmacy advertisers to run advertisements that targeted the United States,’ and prosecutors added that Google, ‘was fully aware as early as 2003 that generally it was illegal for pharmacies to ship controlled and non-controlled prescription drugs into the United States from Canada.’

But once again, it’s not Google’s health or property at stake, so who cares?”

More recently, Google has used its enormous influence within the Obama Administration to push the Obama Federal Communications Commission’s (FCC’s) destructive cable set-top box proposal, which would have compromised consumer privacy, as well as the Obama FCC’s “privacy” regulation of 2016, which Congress just rightfully rescinded.

Intellectual property rights were so important to our Founding Fathers that they specifically safeguarded them in the text of the Constitution.  Since that time, IP rights have provided the “secret sauce” by which we’ve achieved such incomparable technological, artistic and influential supremacy.

Regardless of the merits of the Google’s litigation against Uber, it has every right to safeguard its own IP rights.  It would be nice if it finally dawned on them that they don’t wear hypocrisy well, however, and that they should stop undermining the same protections for others.

In the accelerating debate over patent litigation reform legislation, opponents continue to mischaracterize it as “patent reform,” as if the bill would somehow reorder the system by which patents are granted, the duration of protection and so on.

Whether deliberate or simply careless, that’s simply untrue.

Patent litigation reform legislation, including the Innovation Act that we at CFIF most strongly favor, would reform how patents are litigated, not our patent system itself.  And as Dana Rao, Vice President and Associate General Counsel of Intellectual Property and Litigation at Adobe Systems, details in The Hill, patent litigation abuse remains a serious problem:

The numbers are in.  And they aren’t good.  Patent trolls filed 3,604 suits in 2015, making it the second busiest year on record for abusive patent litigation.  And if anyone had any doubt about the merit of those suits, the busiest filing day last year, by far, came one day before a court rule permitting vague complaints was set to expire.  A record 212 patent infringement lawsuits were filed on November 30.  That is nearly 18 times as many as a normal day.  What kind of patent holder would scramble to file a suit to take advantage of this rule?  A patent holder who knew their suit had no merit.  These recent numbers reveal that court decisions and rule changes do not discourage abuse of our patent system.  In the current system, trolls continue to bring frivolous suits in sympathetic courtrooms around the country.  Only legislation will change these dynamics.”

The Innovation Act addresses that critical need for reform.

The Innovation Act targets patent litigation abuse by:  (1)  Forcing frivolous litigants who can’t demonstrate to the court that their “position and conduct … were reasonably justified in law and fact, or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust”;  (2)  Changing pleading standards so that parties must state their allegations with greater clarity and specificity, instead of relying upon vague and summary allegations that offer little insight into the nature of their claims;  (3)  Reforming the pretrial discovery process (witness depositions, document requests, etc.) in order to reduce the oppressive burdens currently imposed on parties, often as a tactic to drive innocent parties to settle rather than vindicate their rights;  and (4)  Bringing greater transparency regarding true ownership of disputed patents.

Notice what the Innovation Act does not do:  overhaul the patent system itself.  Which is one reason why the bill passed by an overwhelming and bipartisan 325-91 vote in the last Congress.

So why do opponents continue to mischaracterize it as “patent reform?”  Only they possess the certainty of their own minds to explain, but one suspects that it’s a ploy to frighten those of us who support strong intellectual property (IP) protections.  But CFIF takes a backseat to no one in advocating strong IP protections, and we would not support any bill that threatened to undermine them.

Whatever their motivations or confusion, however, it’s important that elected officials, policy analysts and everyday Americans remain clear that patent litigation reform should not be confused with “patent reform.”

In the matter of much-needed patent litigation reform legislation before Congress, provisions targeting abuse of the pretrial discovery process constitute an underemphasized but critical component.

“Discovery,” for those who haven’t suffered the misfortune of practicing law or being sucked into litigation at some point in their lives, refers to the process by which litigating parties obtain relevant documents and information from opposing parties.  Typical methods of discovery include depositions (out-of-court testimony under oath), document requests, interrogatories and requests for admission (to obtain evidence and narrow the scope of questions to be litigated).

As anyone who has participated in the discovery process probably learned, it can become extremely burdensome in terms of time, money and logistical tedium.  Indeed, that’s why some parties abuse discovery in order to drive opposing parties toward settlement or withdrawal, even when those parties actually maintain the superior legal position.  Discovery abuse increases nuisance value and can be exploited as a tactic to harass and intimidate other parties.

Patent litigation is particularly subject to discovery abuse, because the issues litigated are typically complex, document-intensive and within the knowledge of enormous numbers of people.

For that reason, the discovery reform provisions of broader patent litigation reform are especially valuable.  The Innovation Act, which passed by a bipartisan 325 to 91 vote in the House of Representatives, moves toward a system in which discovery is limited to necessary information rather than endless fishing expeditions that lawyers exploit as a negotiating and intimidation tactic.

Importantly, however, the Innovation Act preserves important caveats to its reforms to preserve the interests of justice.  First, it explicitly allows that, “In special circumstances that would make denial of discovery a manifest injustice, the court may permit discovery, in addition to the discovery authorized under subsection (a), as necessary to prevent manifest injustice.”  Second, the Innovation Act allows that, “The parties may voluntarily consent to be excluded, in whole or in part, from the limitation of discovery provided under subsection (a) if at least one plaintiff and one defendant enter into a signed stipulation, to be filed with and signed by the court.”

Thus, the Innovation Act’s important discovery reform provisions can be superseded by court order or voluntary agreement of the parties.

Who could object to that common-sense reform?

Frivolous litigants and their attorneys, that’s who.  Reform of the pretrial discovery process would mean that such vexatious litigants would be less able to extract surrender or settlement from parties unwilling to subject themselves and their companies to the crushing burdens of discovery.  Any party acting in good faith, however, would obviously have nothing to fear.

In a recent Daily Caller piece entitled “Patents Are Private Property, Too,” Eagle Forum adviser James Edwards throughout most of his column marshals a strong defense of America’s intellectual property (IP) rights system.

Unfortunately, in his final two paragraphs he needlessly and erroneously detours into alleging that patent litigation reform efforts before Congress somehow undermine IP protections.  The truth is precisely the opposite.  Patent litigation reform and IP rights are complementary, not contradictory.

CFIF takes a backseat to no organization in defending IP rights, and Edwards rightly highlights how America’s strong IP system provides the foundation upon which we became and remain the most innovative and prosperous nation in human history.  He correctly notes that our Founding Fathers considered IP a natural right no different than physical property, and how they accordingly specifically protected them in the text of the Constitution.  As Abraham Lincoln later observed, “The patent system added the fuel of interest to the fire of genius.”

And as we have noted repeatedly, it is not by coincidence that America maintains the world’s strongest IP protections while also standing unrivaled as the most inventive, powerful, prosperous and influential nation in history.  That relationship is causal.

Unfortunately, in his final two paragraphs Edwards veers regrettably astray.  Specifically, he claims that patent litigation reform legislation currently under Congressional consideration would somehow undermine patent rights and “make it much more difficult and riskier to defend one’s patent against infringers.”

Respectfully, that is flatly false.

Patent litigation reform legislation, which passed the House two years ago with an overwhelming 325-to-91 majority, addresses how patent disputes are litigated, not patent rights themselves.

Under current law,  as most people know, overly litigious actors can file frivolous lawsuits or baselessly defend against valid claims because it’s highly unlikely under our current system that they’ll be forced to pay the other side’s attorney fees and litigation costs when they ultimately lose.  That’s because American law generally requires each side to pay its own costs and fees, even if the other side’s claim was weak.  As a litigating attorney who defended against innumerable frivolous claims in my legal career, I can confirm firsthand that winning an award of costs and fees from even the most egregious litigants is exceedingly and unfortunately rare.  Accordingly, bad actors often use our court system to extract improper settlements or frighten legitimate patent holders from defending their rights due to the prospective time and costs of litigation.

That’s where patent litigation reform comes in.

The Innovation Act, the bill that CFIF most strongly supports, targets abuse of our court system by:  (1) Holding losing parties accountable for prevailing parties’ attorney fees and costs unless they can demonstrate that their “position and conduct … were reasonably justified in law and fact, or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust”;  (2) Reforming pleading standards to require greater clarity and justification for their case, rather than relying on vague and unintelligible boilerplate allegations;  (3)  Increasing transparency regarding the true owners of disputed patents;  and (4) Streamlining the burdensome discovery process, which too often imposes oppressive burdens and delays resolution of cases.

Those are manifestly common-sense litigation reforms that all Americans, particularly conservatives and libertarians who broadly favor reform of America’s flawed system of litigation, should support.

CFIF simply would not support any bill that undermined America’s patent or other IP protections.  The simple fact is that patent litigation reform would protect legitimate patent holders, and the only people with anything to fear are those who cannot demonstrate that their claims are based upon good faith and valid law – which is not difficult for legitimate litigants to show.  We therefore encourage all of our supporters and activists across the country to contact their elected representatives in Congress to voice their support for badly-needed patent litigation reform legislation.

In a typically excellent commentary, AEI’s Michael Rosen suggests how Republicans can begin to correct their costly lag in attracting “votes and dollars from the high-tech industry,” and to “forge a technology policy rooted in free-market policy and updated to reflect and respond to 21st-century concerns.”

Mr. Rosen provides illustrations of the nature and depth of the problem, but also identifies recent progress made by various Republicans.  Helpfully, he proceeds to identify three key components of a much-needed “technology manifesto”:  (1)  Address the needs and wants of the tech community without pandering to it;  (2)  Adhere to free-market values, but apply them intelligently to new technological challenges;  and (3)  Avoid soundbites – articulate sound explanations.  He then cites AirBNB, Uber and other tech upstarts to apply his points.

Finally, Mr. Rosen smartly addresses the ongoing patent reform and patent “troll” debate that’s likely to reappear in the new Congress.  Among other points, he highlights how litigation reform to curb trial lawyer abuses, as opposed to altering patents or intellectual property rights more generally, offers the primary corrective to the underlying problem:

Republican candidates must promote real innovation and reduce deadweight loss without succumbing to the temptation to demonize patent holders.  The patent ‘troll’ reform debate contains multitudes, but the specific issue of attorney fees nicely encapsulates the tensions and the opportunities for GOP candidates…  GOP candidates hoping to garner support in the tech community should resist their inclination to uproot centuries of American legal and intellectual property tradition simply to settle old scores, both in general and in the particular area of attorney fees.  Rather than undo our longstanding ‘day in court’ practice by presumptively awarding fees to winning parties, as many Congressional Republicans seek to do, discerning free marketeers should push to modestly trim, not flip, the burden.  This approach may not fully satisfy the rabidly anti-trial-lawyer conservative donor base, or, for that matter, large Silicon Valley companies pushing for significant changes to the patent system.  But it will certainly find favor with small and large companies whose bottom lines – if not whose very existences – depend heavily on their IP assets.  Such a nuanced position promotes innovation and comports with historical notions of American justice – two key themes Republicans looking to score points in the Valley must hammer home consistently.”

Excellent points with which CFIF has consistently agreed, apart from my need to assure him that at least this “anti-trial-lawyer conservative” tested negative for rabies.

Each Monday, The Wall Street Journal’s “Information Age” column by L. Gordon Crovitz is a must-read.  His analyses are invariably intelligent and his policy positions are usually wise.

On intellectual property (IP), however, Crovitz occasionally hits discordant notes.  Unfortunately, this week provided another example.

In “Even Silicon Valley Tilts Republican,” he highlights the surprising news that this year, technology companies reversed tradition and gave 52% of their political contributions to Republicans.  He also touches upon the topic of patent law reform, which CFIF has broadly supported.  But then he veers off logical course by maligning patent rights, specifically with regard to software patents:

Patents make little sense for software, which almost always builds on an earlier work.  There are some 250,000 potential patent violations in smartphones alone.  Companies known as ‘patent trolls’ stockpile patents to extract huge settlements from technology companies, not to build products.  Plaintiff lawyers joke that their focus has gone from ‘PI to IP.’  Now that personal-injury litigation has been reformed in many states, they’re turning to intellectual property lawsuits such as patent infringement.”

It’s difficult to fathom how Crovitz continues to make such a claim.

The United States maintains by many measures the world’s strongest patent and IP protections.  It also leads the world in technological innovation, including software and smartphones.  That’s not coincidence.  It’s cause-and-effect.  In an excellent recent piece for IPWatchdog.com, patent attorney Gene Quinn offers a superior analysis on IP rights and innovation in such areas:

Why will anyone invest the extraordinary sums of money to create the innovations we want without an expectation of exclusivity that will allow for a recoupment of the investment plus a reasonable return on investment?  ‘The Truly Staggering Cost of Inventing New Drugs unveils a Forbes study finding:  ‘The average drug developed by a major pharmaceutical company costs at least $4 billion, and it can be as much as $11 billion.’  And it is pure fiction to believe that software development doesn’t follow the same economic realities.  When IBM produces one of their large-scale projects, there will have been many hundreds of people working on the software solution for at least several years.  The same is true for a new Apple operating system, or the next version of Microsoft Windows.  It is pure fantasy to believe that software programs are written over a long weekend by a single person who is merely a second-year engineering student.  Software that is compatible, secure and actually works is rare these days, and takes real development effort, which costs real sums of money.  The quickest way to get less innovation is to destroy the patent system.”

Quinn is correct, and the real-world facts speak for themselves.  Strong patent protections spur the innovation for which America and its tech sector are known.  Moreover, there isn’t anything inherently wrong if a patent holder with no ability or intention of manufacturing or marketing an invention sues for violation.  A patent right is simply a property right enforceable by law, just as a songwriter can rightfully sue for infringement even if he or she didn’t have the ability to sing the song, assemble a band, reserve a recording studio or find an agent.

That obviously doesn’t mean that we should in any way condone the filing of frivolous lawsuits based upon false claims of patent infringement.  But it does mean that much of the “patent troll” problem can be resolved via litigation reform, such as requiring greater specificity in court pleadings and shifting of attorneys’ fees and costs to more of a “loser pays” system.

What we don’t want to do is demonize patent rights, which have been the foundation for American innovation through the decades and centuries.

Because the mortgage giant’s former CEO Franklin Raines was trying to make yet another corrupt buck from his government perch.  After concluding his five year run as chief executive, Raines agreed to pay a nearly $25 million fine for Enron-style accounting gimmicks that netted he and other officers millions more in compensation.

Now, World Net Daily is reporting that Raines and others applied twice for the same residential cap-and-trade patent; the first time on behalf of Fannie Mae, the second time for themselves as private “inventors.”  Since the same people applied both times the second application supersedes the first, meaning any profits from the patent go not to Fannie Mae, but Raines & Co.

These distinctions matter because Raines – acting in his capacity as head of Fannie Mae – initially claimed to apply for the patent in order to give the mortgage backer a strong position in encouraging more “green” housing.  That claim proved phony when his second application guaranteed him a windfall if “comprehensive reform” ever came in the form of cap-and-trade legislation.

Sound familiar?  CFIF readers will recall a recent column discussing the same kind of self-enrichment in Obama’s Energy Department, and another analyzing the government’s inability to run any enterprise – and specifically Fannie Mae – like a business.

Who knew we’d get an example that combined them so soon?