March 18, 2015
Since taking control of both chambers of Congress, Republicans have been expected to trumpet patent reform as an issue with bipartisan support and one we can demonstrate early on in which we are willing to work with President Obama. Republican leaders have talked about moving such legislation early this year. Some have tried to claim that this is good for the economy. Nothing could be further from the truth.
Rushing to pass bad legislation just so we can demonstrate a willingness to work with the White House is not the path to take. Despite the support of many Republicans in the previous Congress, this legislation, as it stands, is just another one-size-fits-all, big government overhaul of a sector of the economy that is not broken. The government is here to help? Stop me if you’ve heard this before.
First there was Obamacare, then Dodd-Frank. Every time the politicians in Washington see a problem, instead of coming up with targeted fixes, they want to push through comprehensive reforms that change the parts of the system that are working right along with the parts they think need help — and always make things worse.
Our constitutionally protected patent system (Article 1, Section 8) is critical to promoting innovation and economic growth. Our founders knew that protecting intellectual property was just as important as protecting physical property. Patent protection gives people the incentive to take risks and invest, knowing they will own and profit from their ideas.
There are valid concerns about the patent system, and there are ways to advance specific and targeted reforms to deal with bad actors, frivolous lawsuits, etc. Unfortunately, the current legislative proposals have not done that. They overhaul the entire system. Just like the other big government overhauls in recent years, this would target the whole incentive structure for innovation — with unintended consequences — rather than address specific areas needing reform.
Some conservatives have tried to justify support for these proposals as a form of tort reform. Undermining property rights is not tort reform. Patent litigation is at a five-year low, according to data from Lex Machina, and the rate of patent lawsuits has averaged around 2 percent of all patents for decades. We’re going to undermine our fundamental rights to address a supposed litigation explosion that doesn’t exist and that supposedly advances tort reform. Conservatives should have no part of this.
Strong patent protections are among the key economic concepts that distinguish us from nations like China, where intellectual property theft is rampant. Why would we support legislation that emulates their model? We should be protecting our inventors from theft and ensuring that American innovation is on the cutting edge, not undermining property rights and surrendering our one key advantage to the Chinese.
A number of leading conservative organizations and legal scholars have expressed grave concerns about the consequences of this legislation. It makes no sense for conservatives to support legislation that stifles innovation, weakens property rights, surrenders our advantage to China and rewards Mr. Obama’s leading corporate supporters.
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