Brandons Dilemma: Coming to Terms with the Hardships of Finding Quality

Patent Reform
Brandon Jones
The purpose of patent law in the United States is to create an environment that is
rewarding for inventors and innovators by protecting their inventions from mimicry. A
patent, not to be confused with copyrights (creative expression) and trademarks
(branding), is a government-granted right to prevent others from making and selling
particular technologies. (Grimmelmann, 567). Patents prohibit others from copying
innovative ideas/technologies from the original inventor without compensation to the
original inventor. Patent laws are meant to protect industry. However, due to a multitude
of different reasons, mostly surrounding patent trolls, patent law has failed to create a
competitive environment. In this paper, I will discuss these issues in patent law as well as
the potential proposals to fix them. I will then critique these proposals and come to the
ultimate conclusion that there is no definitive answer to patent reform unless further
studies by Congress are started to determine concrete solutions.
Patent law has come under heavy scrutiny due to the emergence of patent trolls.
These patent trolls, such as Lodsys, go out and scavenge up a bunch of patents in order to
sue other people who may have similar invention. Some patent trolls will often partake in
forum shopping where they look for a court that is advantageous for plaintiffs, so that
they can win with a hefty damage fee burdened onto the defendant. However, not all
patent trolls care about the outcome of their case. The litigation process alone has allowed
for patent trolls to essentially shake down the defendants into settling out of court for a
large court fee because litigation has put the burden of proof onto the defendant. The

worst part is that these patent troll companies only exist for the sole purpose of litigation.
Patent trolls dont even use their patents for the industry they are meant to be in.
The emergence of patent trolls is a story that goes along with the long history of
patent law in the United States. The first patent legislation in the United States came to
fruition in 1790 with the Patent Act: The first United States Patent Act, that of 1790,
was a short act of seven sections only entitled, An Act to promote the progress of useful
Arts. Under its terms, any two of the Secretary of State, the Secretary of War, and the
Attorney General were empowered to grant patents for terms of up to fourteen years for
inventions that were sufficiently useful and important provided that the grantee
submitted a specification describing the invention (and where appropriate, a model
thereof) to the Secretary of State at the time of the grant. (Ladas and Parry, 2014). Patent
law was a major force in igniting innovation in industry until the late nineteenth century.
At this time, monopolies began to form and public outcry for reform started to happen.
The thought at the time was that monopolies would use patents as a way of restricting
competition in an industry, which was the exact opposite initial purpose of patents. The
Sherman Antitrust Act in 1890 began a slew of reforms that were well in effect through
the 1960s to ensure that patent laws were not being created to restrict competition.
However, in the 1980s, America shifted its policy back toward patent laws that were
favorable for the creation of more patents with the rise of neo-liberalism culminating in
the election of Ronald Reagan. With the new administration, a new court in charge of
overseeing patent cases was created: the Court of Appeals for the Federal Circuit. Ladas
and Parry describe this new court: The new court initially seemed pro-patent in its
attitude, which resulted in a generally more favorable attitude to the value of patents

throughout American business. One manifestation of this change has been the courts
assertion that the patent statute means what it says when stating that [a] patent shall be
presumed valid. The court has held that anyone challenging the validity of a patent needs
clear and convincing evidence to succeed. This contrasts with the normal standard of
proof in civil cases in which a party asserting a cause need only establish his case on the
balance of probabilities. (1). The history of patent law throughout the history of the U.S.
has been much like a pendulum swinging from both sides of the political spectrum in
accordance with who is in control of policy making.
So the question becomes: Why are any of the laws regarding patents important?
The answer to that is that patent law provides the very framework for how our economy
works. Patents essentially establish a short-term monopoly whose purpose is to create
innovation in the marketplace to increase consumer welfare. However, patents exist on an
incredibly fine line between how much power a patent can hold. A patent can become
abusive if it hinders the competitive atmosphere of its industry. Yet, if you do not have
patents, then there may not be enough enticement for innovators to want to share their
product with the public. If you are too lenient toward giving patents, you also have to
deal with non-practicing entities, patent trolls, snatching up overly vague patents to make
patent litigation their business model. The fact of the matter is that patent law is
incredibly important for the public good, but the lack of cohesive policy has created a
system that has run amuck. All in all, the proposed provisions are not a necessary good or
bad. Each provisions has its benefits and drawbacks that we as a democratic society need
to figure out how we should weigh each option.

One takeaway from the history of patent law is that patent law does not only
effects patents, but that it also effects antitrust laws. It appears as though these two ideals
are often at odds with one another depending on the political leanings of those in charge.
Those who favor individualism tend to favor more lenient patent laws as a way of
enticing inventors to innovate industry, but this creates more monopolies. Whereas, those
who favor egalitarian views tend to want stricter antitrust laws making it harder to issue
patents. From a moderate perspective, the issue with having these two polarizing views is
that once the politics of the right become in charge, an environment favorable for
unnecessary patents is created as retaliation for the overregulated rules that were in
place before. What I am getting at with this argument is that the best possible way to
prevent patent trolls could exist as a meeting in the middle of the political spectrum. In
their article, Entering the Innovation Zone: How Patent and Antitrust Law Must Work
Together, Jeffrey Lewis and Maggie Wittlin make a similar argument:
The story of patent and antitrust law has been one of conflict, where each has
ascended and descended in dominance inversely with the other. To a degree, this
trade-off is understandable; in a number of cases, the principles behind one policy
point to a different resolution than the principles behind the other. But while both
policies have the same fundamental goal-improved consumer welfare through
innovation and competition-they merely achieve it through different means: one
by creating temporary monopolies to encourage innovation and one by prohibiting
anticompetitive arrangements and activities. Creating an ideal innovation and
competition regime requires carefully balancing the strength of each policy.
(573).

My point for this argument is that if we want to create an environment that avoids the
existence of patent trolls, then maybe we should consider a not so polarizing policy on
patent and antitrust laws as a means to creating not an ideal, but a practical policy.
However, even this suggestion is not fool proof. The assumption that my own point rests
on is that the right wing will settle for appeasement. Although the classically liberal side
might find appeasement in meeting in the middle, they are still likely to see the middle as
being too liberal for patent policy.
Another possible proposal of mine is that maybe we should ditch the patent
system in general for Author Certificates. In her article, The Rise of Intellectual
Property, 700 B.C. A.D.: An Idea in the Balance, Carla Hesse states: In both the
Soviet and Chinese communist regimes, however, there was an increasing recognition of
the necessity to create nonproperty-based incentives for individual authors and inventors.
A system of state-issued awards, prizes, and privileges became the socialist mechanism
for encouraging creation and inventionWhile the state retained the power to exploit, or
not exploit, the contributions of these individuals, the certificates made their bearers
eligible for material rewards and remuneration from the profits generated by their
creations. (43). Creating a state-sanctioned system of governmental rewards for
innovation would remove the need for their to be a consistent battle between patent and
antitrust laws. Instead, the government can reward those inventions deemed as innovative
with Author Certificates. However, even this train of thought has a litany of issues. First,
how much government funding would be needed to create such a program? Would there
be enough funding for this program? How much funding would be enough to entice
potential inventors to actually invent? Having a state-sanctioned program would make the

process stricter as a way to not overspend, but how strict should the program be for who
gets Author Certificates? These past two examples that I have brought up are incredibly
idealistic, so instead I am going to turn my attention toward legislation that is seemingly
more plausible.
Two of the major issues with patent law today are that the language that makes up
patent law is too vague, and that the litigation process is geared in a way that is too
conducive for patent trolls. These two issues are incredibly intertwined with each other.
Before I divulge into more detail about their intersections, I will first address them at face
value.
First, lets examine the issue of concise language in patent law. This issue comes
up multiple times with patent law. The very process of getting a patent rests on vague
language. To gain a patent, an inventor must prove that their invention is novel and not
an obvious next-step. The issue with this language is that it does not create an objective
understanding of what a patent is for the United States Patent and Trademark Office.
Each reviewer at the USPTO may have his or her own interpretations of what determines
an invention to be novel. Eventually, someone will pass a bad patent, thus setting a
precedent for future patents. This allows for a litany of patents to be issued. These extra
patents hinder innovation because the vague patents can be applied to a large spectrum of
different aspects of technology, which than can be used to shake down the real
innovators. Even provisions already made/future proposals for change to patent law can
be vague. Jonathan Darrow discusses one provision made in 1850 that is incredibly
vague: In the landmark 1850 case of Hotchkiss v. Greenwood, the Supreme Court held
unpatentable an improvement on a doorknob, explaining that unless more ingenuity and

skill required [to make the invention] than were possessed by an ordinary mechanic
acquainted with the business, there was an absence of that degree of skill and ingenuity
which constitute essential elements of every invention the PHOSITA standard reflects
the common sense notion that the question of whether a variation is trivial should not be
determined from the perspective of someone who knows nothing about the field in
question but rather from the perspective of one who is ordinarily skilled in that field.
(233). The establishment of patents being issued in regards to the ordinary skilled worker
in that field still left ambiguity in patent law. What constitutes the ordinary worker in a
field? Are all industries on the same basis of what is ordinary? This example shows that
provisions to patent law in the past have failed to actually fix the vagueness of patent law.
Even now, a proposal by the EFF can be seen as overly vague: Congress should pass
meaningful reform to discourage and punish bad actors from sending frivolous demand
letters. (17). The vague language still persists in this suggested proposal seen in the
phrase frivolous demand letters. What constitutes a frivolous demand letter? The
definition of frivolous is too subjective for it to be substantial change to patent law. To
counteract the vagueness, Congress needs to make studies to determine actual concrete
solutions rather than vague, subjective resolutions. I will continue with this idea later, but
for now, I will move on to another huge issue with patent law today: the litigation
process.
The litigation process is the host to numerous issues in patent law today. First, the
litigation process has allowed for forum shopping. The idea of forum shopping is that
these patent trolls are able to essentially shop their case around to find a court that is
more favorable to plaintiffs in order to have a better shot at winning. Forum shopping is a

huge issue in patent law because it rids the litigation process of being fair and balance for
the defendant. Another issue with is that the burden of proof is given to the defendant,
thus creating the guilty until proven innocent atmosphere that allows for patent trolls to
thrive. Instead, patent law reform should reflect other forms of law where you are
innocent until proven guilty. Patent law should also hold patent trolls accountable for
litigation fees that defendants have to pay if the defendants are found innocent. Finally, as
the EFF has suggested, the litigation process needs to change by having courts limit the
damage awards they give to winners in patent court cases. Having such extravagant
awards for patent cases encourages the business model in place for patent trolls.
However, the major issue with the courts stems from the power they have created for
themselves through the lack of conciseness in patent law.
This idea is what connects the issues of concise language in patent law and the
litigation process, thus connecting Congress to the Courts. In the case, Octane Fitness,
LLC v. ICON Health & Fitness, the Supreme Court created a precedent that has allowed
for courts to be more subjective in their interpretations of patent law: In its place, the
Supreme Court held district courts may determine whether a case is exceptional in the
case-by-case exercise of their discretion, considering the totality of circumstances.
Moreover, as in the comparable context of the Copyright Act, there is no precise rule or
formula for making these determinations, but instead equitable discretion should be
exercised in light of the considerations. (Soroudi, 335). Because of the vagueness in
language pertaining to an exceptional case, the Supreme Court justified the idea that
district courts can handle case on a case-by-case exercise of their discretion. Whats the
big deal about this? This kind of ruling allows for issues such as forum shopping to exist.

If the courts are able to determine whether case is exceptional based on their own
discretion, then patent trolls are going to go to a district court that 1) follows through with
this precedent, and 2) generally favors plaintiffs in their discourse. This case here is an
example of how the litigation process can run amuck because of a lack of conciseness in
patent law language.
Based on this idea that the litigation process issue with patent law stems from a
lack of conciseness in language, one can reasonably come to the conclusion that the head
of the patent troll snake can come from a more thorough, objective form of writing with
patent law. However, one potential issue with this is that it becomes incredibly difficult to
create language that does not contain any element that could be interpreted as overbroad,
thus allowing courts to overstep those boundaries. This issue should not deter Congress
from passing more concise language, though. If Congress were to pass more concise
language, the issue with patent law in general would be much harder to exploit for patent
trolls.
The question now becomes: How do we make a patent system that is more
concise? For me, the answer lies in Congresss funding for studies to determine actual
quantifiable values of an inventions viability in the marketplace. The answer for me to
patent laws lack of conciseness can be answered in speculation. I cannot answer how
exactly Congress will determine what the speculative value of each invention should be,
but that the answer must be conceived in Congresss research findings. This speculation
cannot be a broad stroke, though. Congress must create a speculative standard for every
industry in order to be as concise as possible since different industries might have
different speculative prospects. This idea then forces Congress to create legislation on

what constitutes for a new industry. This industry legislation must have concrete
standards that address what constitutes for a new industry. Albeit its ability to quantify a
patents worth, this possible solution is not without its issues. This solution rests on the
assumption that speculation (gambling) can accurately determine an inventions future
worth. Furthermore, this solution could be rather costly with its heavy amount of research
into every industry. Finally, this solution can become an overly dense code as more and
more inventions and industries are created since it must account for all industries.
As seen in the above solutions potentially proposed to correct patent law, there are
indeed some benefits to these proposals, but they have their negatives too. Patent law
must still strive for reform, though. I am not entirely sure of how to completely solve the
patent situation. However, I do believe that if any positive reform is to come, it must
come through Congress via more research into how to make patent law more objectively
observable.

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