President's Message

Oh dance in the dark of night, Sing to the morning light. The magic runes are writ in gold to bring the balance back. Bring it back.

Much scholarship has shown that a significant impetus for American innovation has been its strong, patent-friendly patent system with courts willing to enforce patents.

See, e.g

David Silverstein, Patents, Science and Innovation: Historical Linkages and Implications for Global Technological Competitiveness, 17 Rutgers Computer & Tech. L.J. 261, 263 (1991)

(“the U.S. patent system has played a significant role in both stimulating innovation and promoting the commercialization of new technologies”). Scholarship has also shown a direct correlation between strong patent rights and increased V.C. and private equity investment in R&D, start-ups, and new technologies.

See, e.g

Lawrence H. Stahl & Robert H. Fischer, The Value of Patents to Technology Driven Companies, 22 Intell. Prop. & Tech. L. J. 27, 29 (2010)

(“The investors . . . will demand protection for their investment. And one of the most visible ways to secure that protection is through patents”). Importantly, when patents are perceived as too costly to enforce or too easy to evade, innovation declines sharply.

See

Andrew Beckerman-Rodau, Patents are Property: A Fundamental But Important Concept, 4 J. Bus. & Tech. L. 87, 93 (2009)

(“Absent the ability to assert patent property rights, fewer inventions will be patented and the public storehouse of knowledge will decrease”).

Of course, I am not advocating that the patent system become too one-sided the other way, favoring patent owners in every case. Some parties (not just trolls) have certainly abused the patent system. But I am advocating for a balanced system, one in which innovators have better prospects for obtaining and enforcing patents but that is also fair to accused infringers and allows appropriate defenses. The point is that Congress and the Supreme Court must consider the long term impact on American innovation and the economy before further restricting patent rights. The Supreme Court’s recent

Halo

opinion, which makes it easier for patent owners to prove willful infringement, is a step in the right direction. The decision restores some of the balance to the patent system. I hope that the members of the BPLA will join me in seeking to promote a balanced, fair, efficient, and economical patent system.

President's Message

Summer 2016 -

Erik Belt

McCarter & English LLP

Bring it back. Bring back the balance to patent law. In the last few years, Congress and the Supreme Court have tilted the scales of patent law against innovators. For example, the

Leahy-Smith America Invents Act

has, I believe, added more hurdles for inventors to clear and has thus made securing and enforcing patent rights harder and/or more expensive. In cases such as

eBay

, the

Bilski

Mayo

Alice

trilogy, and, most recently,

Cuozzo

, the Supreme Court has also squeezed patent rights. One aim of the AIA was to globalize U.S. patent law, arguably making it more like European law. But the U.S. has long been the most innovative country, and a good reason for that has been its strong, efficient, patent-friendly system. So why become like the rest of the world? Although the seeds of the Industrial Revolution were planted in England, it blossomed in 19th and early 20th Century America. (Think the

light bulb

, the

telegraph

and

telephone

, and the

airplane

—all inventions protected by patents.) The reason, as many historians will say, is that the U.S. had the strongest patent system and courts open to patent litigation. But, when the legal system and academics started to frown on patents in the 1960s and 1970s as anticompetitive, innovation moved off-shore. For example, in the 1960s, American companies like

RCA

and

Philco

set the standard for color television. Those companies were the

Apple

and

Google

of their day. In the 1970s, however, patent filings at the USPTO declined and American companies, fearing antitrust enforcement and facing courts resistant to patents, started shedding their patent portfolios. Into the void came companies like

Sony

, which out-innovated America with the

Trinitron one-gun color TV

. (Growing up the ‘70s, my family had a Trinitron; it was the Hi-Def, flat screen TV of the day. Our Trinitron replaced an RCA three-gun color TV.) After the

Federal Circuit was established in 1982

, patents became

in vogue

again, and innovation and patent filings rose.