By Kevin E. Noonan --
One of the frustrations for participants in the patent wars of the early 21st Century has been the failure of many of the most vulnerable stakeholders to take a stand against overreaching proposals by proponents of a crisis atmosphere in patent enforcement (such as the Goodlatte bill, H.R. 3309, ironically entitled "The Innovation Act" passed by the House of Representatives in the last Congress). Having been spared passage of this bill in the Senate (purportedly by the trial lawyers, who pointedly told the Democratic leadership that they would lose the lawyers support in the midterm elections should the bill pass), at least members of the Big Ten conference of universities have gotten the message. In a letter to Rep. Sean Duffy (WI 7th) sent January 20th, the presidents and chancellors of all thirteen of the conference's universities* argued against a repeat in this Congress of the provisions in the Goodlatte bill.
After pledging to wish to work with Congress, the letter notes that technology transfer from universities "has brought about hundreds of billions of dollars in economic activity and over three million jobs in the past thirty years nationwide" and that the only way to reap those benefits is to have "a strong defensible patent" to protect the investment needed for commercializing university inventions. Enacting a bill like the Goodlatte bill "would [make] using the courts to enforce any patent much more difficult," according to the letter, specifically calling out the "loser pays" and joinder provisions as being particularly problematical. These provisions "would have the effect of making patent licensing negotiations more complex and likely discourage at least some of [the conference's] members from licensing their inventions at all." Litigation would be restricted to those "legitimate patent owners" with "deep pockets" because of the attorneys' fees risk.
The letter reassures the Representative that the Big Ten does not approve of those "who abuse the patent system," and pledges support for "narrow legislation that targets those individuals." But "[u]nless patent holders are able to defend and assert their patents," the letter warns that the value of the patent system [will be] eroded and fewer businesses will be willing to license and develop these patents into the new products, new drugs and medical devices that will improve the quality of life and increase economic growth" in America.
This is a good beginning, but clearly much more must be done to counter those lobbying groups whose masters would like nothing less than to inhibit small patent owners and universities from being able to enforce them against those who would rather just expropriate the technology (as was done before passage of the Bayh-Dole Act in 1980).
* These include Phyllis M. Wise, Chancellor, University of Illinois at Urbana-Champagne; Mark Schlissel, President, University of Michigan; Michael V. Drake, President, The Ohio State University; Michael A McRobbie, President, Indiana University; Eric W. Kaler, President, University of Minnesota; Eric J. Barron, President, Pennsylvania State University; Sally Mason, President, University of Iowa; Harvey Perlman, Chancellor, University of Nebraska-Lincoln; Walla D. Loh, President, University of Maryland; Lo Anna K. Simon, Michigan State University; Morton O. Schapiro, President, Northwestern University; Robert L. Barchi, President, Rutgers University; and Rebecca M. Blank, Chancellor, University of Wisconsin-Madison.