On June 13, 2017, CPIP Founder Adam Mossoff testified before the House Judiciary Committee’s Subcommittee on the Courts, Intellectual Property and the Internet. He and other witnesses testified about the impact of the Supreme Courts recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC on innovators and the possibility of future changes to patent law.
In his opening statement, Professor Mossoff primarily described how patent owners—particularly individual inventors and small businesses—will now be required to file multiple lawsuits all across the country to enforce their rights. This will drastically increase the cost of protecting their property from infringers, which for many innovators will be cost prohibitive. Professor Mossoff mentioned one such inventor, Bunch-o-Balloons inventor Josh Malone, who is being seriously harmed by the inability to protect his invention from rampant infringement. Together with the litany of other recent disastrous changes to our patent system, innovators are now in a precarious position when deciding to rely on patents to protect their inventions.
Professor Mossoff emphasized that Congress’ first priority should be “do no harm.” Rather than make another attempt to pass legislation further restricting patent owners’ rights, it would be better for Congress to simply do nothing. However, Congress could make the patent system better for innovators. One step already being discussed that would be a positive improvement is the suggestion to amend Section 101 to limit the scope of the judicial exceptions to subject matter eligibility. At the hearing, Professor Mossoff astutely noted that the first patent ever issued in the United States—being held up at that moment by Chairman Darrell Issa—would likely be invalidated under current patent eligibility standards.
Many questions directed at the witnesses asked for them to propose specific solutions to either perceived venue abuses or broader patent law issues. Professor Mossoff stressed that systemic changes to the patent system will not just affect a few bad actors, but all of the individual inventors, small businesses, universities, licensing companies, and R&D-intensive high-tech and bio-pharma companies who rely on the patent system to protect their innovations. These types of companies have been the fountainhead of the U.S. innovation economy for more than 200 years. “Reform” that only addresses the concerns of accused infringers, but not the costs to patent owners, is doomed to do more harm than good.