No doubt, there is a limit to what the federal government can and should do. That is as it should be. To grant any government unlimited powers would be a paramount threat to liberty and property. But we believe strongly as did America’s founders that the principal object of government, certainly good government, is to protect property rights. That, according to President James Madison in Federalist No. 10, “is the FIRST object of government”. In short, the most important responsibility of government is to uphold property rights. We believe this is a good time for Congress to refocus its direction accordingly.
To that end we believe minimally 3 things must change in the American patent system to stabilize and restore invention property rights and restart the patent system.
First, injunctions must be restored so that once infringement is found an injunction must issue against any infringer. To not do so as is presently the case only encourages theft. That is fundamentally unAmerican and contrary to the rule of law.
Second, a straightforward and predictable rule for what is patentable must be reestablished. Presently, no one knows what is patentable. If inventors and our investors cannot predict what is patentable, we will not invent as we cannot fund our inventions. We believe the founders had it right. As had largely been the law for over 100 years, if an invention is useful or advances the sciences, it should be patentable.
Third, Congress must end all post issue administrative reviews. Such reviews deprive us of our property rights without access to the courts and trial by jury which America’s founders acknowledged as a fundamental right of all Americans and a fundamental safeguard to property and liberty.
4. Ensure a minimum effective patent term of at least 17 years. Presently as the law is being applied by the PTO inventors commonly receive far less and some nearly no effective patent term after years of fighting the PTO to get our patents.
5. Restore the law so that settlements in the course of litigation are not considered in damages as had been the law for over 100 years. Otherwise, the uncertainty of trial and years of hardship places inventors in an all or nothing game in which they cannot risk any loss at trial so they must at least initially settle at values far below market which presently follows them through all their later commercialization efforts, thereby thereafter substantially depriving them of fair value to their inventions.
6. Provide that patent holders may bring suit in any venue where their patents are infringed and where the infringer has a meaningful connection or presence. This has been the law in America since its founding. To treat invention property different from any other property is unfair and encourages large multinational corps to infringe knowing they can move any action to their home turf where they may have a decided upper hand.
For the rest of our proposed measures and a more complete analysis of the above, please visit our position page at …