What Election Could Mean For Patent Reform

BY CCIA Staff
November 19, 2010

The results of this week’s mid-term elections have been linked to a public desire for “smaller government” or hostility to “big government.” Assuming this is the case, it may be useful to consider what implications a small-government philosophy has for important policy debates, such as the effort to reform the vast federal patent system.

Patent laws, like copyright, represent a government response to a perceived market failure.  Ideas and expressions are hard to control, as Thomas Jefferson famously observed, and if there is no Federal protection for authors and inventors, ideas will be under-produced.  To incent people to produce a sufficient quantity of ideas, the federal government needs to create a market.  It does this by assigning ‘rights,’ and giving litigants causes of action to sue those who infringe upon their government-granted rights.

It is not hard to overdo this, particularly if one has been led to believe the federal government is making property, rather than regulating.  There is a dangerous attraction here: if ideas have value, and there is a seemingly endless supply of them, then the federal government can manufacture an infinite supply of valuable assets by handing out rights to ideas.  Under closer inspection, this perspective breaks down, and it is incorrect to assume that assigning exclusive rights is a costless exercise.  More relevantly, granting more federal rights could reasonably be viewed as a ‘government-as-solution’ strategy, which, we have assumed, is what voters rejected.  This may suggest that a patent reform bill which would reduce the role of federally-granted privileges should find philosophical support in the new Congress.

While it is too early to rule out the possibility of action on specific patent issues in the ‘lame duck’ session, comprehensive action is likelier to occur in the 112th Congress.  Rep. Lamar Smith, expected to return to the chair of the Judiciary Committee, has indicated that patent reform remains high on the agenda.  As that agenda moves forward, one might expect to hear questions not previously raised, such as whether business method patents (not explicitly ruled out by the Supreme Court’s recent Bilski decision) are consistent with a limited role of the federal government in the free market.

If “less government” is merely a bumper sticker, the ultimate effect of the elections on patent reform may not be great.  If the principle affirmatively guides patent policy, however, then reforms could significantly reshape how the patent system regulates American business.

Related Articles

CCIA Welcomes Bipartisan Patent Bill That Would Update PTO Procedures, Promote Fairness In Patent Appeals Process

Jun 16, 2022

Washington – Senators Cornyn, Leahy, and Tillis have introduced the Patent Trial and Appeal Board (PTAB) Reform Act of 2022 today.  Current USPTO guidance allows the PTAB to refuse to examine the validity of challenged patents, even if the patent is clearly invalid. This bi-partisan legislation would ensure that meritorious challenges to the validity of…

Fireside Chat With Hal Varian: Antitrust Bills Would Harm Tech Market, Consumers

May 24, 2022

Washington – A recent fireside chat with Google’s Chief Economist Hal Varian featured discussion on the flawed reasoning behind proposed tech regulations in antitrust bills like S. 2992, H.R. 3825, and H.R. 3826. Together with the Computer & Communications Industry Association’s Director of Research and Economics Trevor Wagener, Hal Varian countered arguments supporting the proposed…

CCIA Files Joint Amicus Brief Asking Court To Re-Hear Standard Essential Patents Case

Apr 21, 2022

Washington – The Computer and Communications Industry Association was joined by The App Association, High Tech Alliance, and the Public Interest Patent Law Institute in filing a joint amici brief Wednesday evening with the U.S. Court of Appeals for the Fifth Circuit requesting that the Panel re-hear a case involving standard essential patents (SEPs) en…