The PATENT Act
Why Patent Litigation Reform is Critical
April passed with little celebration or recognition of one of America’s most important milestones — the 225th anniversary of the Patent Act, which has encouraged and protected America’s storied entrepreneurship and ingenuity since the early days of our nation.
The U.S. Constitution grants Congress the power to protect intellectual property in Article I, Section 8, where it states that 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.”
In April of 1790, just a year after Congress convened for the very first time, legislation was passed to provide additional protections for American inventors, securing their basic rights to the products they created. The Patent Act utilized its Constitutional power to protect inventors of “any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used.” This bill would be the first of many in our history meant to help foster an environment that both encourages and protects our nation’s innovators.
The dynamic force of invention and innovation present throughout our nation’s history has propelled us to prominence on the world stage. After becoming a U.S. citizen, Alexander Graham Bell wrote himself into the history books with the invention of the telephone. George Washington Carver improved the soil quality and production of American agriculture for generations to come by inventing a crop rotation method to replenish soil, and by inventing over 400 ways to use crops that deposited nutrients into the ground rather than stripping them — including more than 300 uses for the peanut alone.

How comfortable would a Texas summer be without Willis Carrier? Carrier developed the first widely adopted air conditioning system and in 1915 founded the Carrier Engineering Corporation, which still produces air conditioning equipment to this day. And how well could you see without Katharine Burr Blodgett? In 1938, she invented the non-reflective glass that is still a critical component of eyeglasses, windshields, and computer screens.
Invention and innovation continue to be hallmarks of the American economy. A study released by the Economics and Statistics Administration and the U.S. Patent and Trademark Office in 2012 detailed in-depth the impact of intellectual property on the American economy. The study identified 75 of 313 total industries in the U.S. as Intellectual Property (IP) intensive. These IP-intensive industries accounted for 27.1 million American jobs in 2010 — that’s 18.8 percent of American employment.
Among those employed in IP-intensive industries, 2.4 million were self-employed entrepreneurs, and IP-intensive industries accounted for $775 billion in U.S. exports. Innovation continues to drive our economy and improve our quality of life.
Unfortunately for today’s tinkerers, small retailers, and tech innovators, the patent landscape can be very hostile. For years, some have been taking advantage of a system meant to drive innovation, instead stifling job creation and threatening businesses around the country with costly litigation and threats.
The dilemma faced by anyone caught in the crosshairs is an unbearable one: spend precious time and resources defending against what are often overly broad or bogus infringement claims, or pay a handsome sum to make a plaintiff go away. Today, some plaintiffs take the form of a shell company with an army of lawyers, the sole existence of which is to prey on our nation’s best and brightest innovators by threatening costly litigation. These so-called patent “trolls” target businesses from Main Street storefronts to Silicon Valley startups and siphon billions of dollars out of the U.S. economy every year.
The constant threat posed by abusive patent trolls discourages entrepreneurs who are understandably hesitant to invest in innovation. In fact, the more resources a company invests in research and development, the more likely it is to be sued for patent infringement. In recent years, the problem has only escalated. Earlier this month, the New York Times Editorial Board noted that the number of patent-infringement cases increased by as much as 25 percent between 2012 and 2013.
According to one study, there were six times more patent-related lawsuits in 2013 than in all of the 1980s.
Of course the need for patent reform is not new to Congress, but despite the need for serious reform, progress has been slow. While the Senate and House worked on developing patent reform legislation during the last session of Congress, we couldn’t come to a consensus.
Building on the progress made last Congress and months of substantive discussions and input from a wide variety of stakeholders, Senator Schumer, several of our colleagues, and I have recently introduced the Protecting American Talent and Entrepreneurship — or PATENT Act. The PATENT Act is designed to reduce the number of trolls and restore the integrity of our intellectual property system.
On Wednesday, Senator Schumer and I hosted a Google Hangout with Engine, Rackspace, and Ordr.in to discuss some of the details of the bill and the urgent need for litigation reform.
The PATENT Act makes the common-sense reforms necessary to ease the burden on American innovators by putting an end to abusive patent litigation. This bill creates clear, uniform standards for pleading patent infringement that ensure defendants receive real notice of claims against them and curbs the practice of sending abusive demand letters to con people into paying settlement fees for unsubstantiated infringement claims.
The PATENT Act deters abusive litigation practices by shifting the cost of litigation to the losing party in cases that are not objectively reasonable, and providing a process to recover fees in cases where the litigant is hiding behind a shell company. This shifts the legal burden back onto those who seek to game the patent system at the expense of those who play by the rules.
American innovators and entrepreneurs deserve the opportunity to develop and grow without fear of frivolous lawsuits that can stop progress in its tracks.
That’s why real patent reform is such a high priority of mine, and one that enjoys broad bipartisan support. The consensus-based proposals of the PATENT Act are the best way to deter bad actors while protecting intellectual property and legitimate claims of infringement. It’s critical that Congress advance these solutions to safeguard the future of our American culture of innovation and entrepreneurship.