A Senate subcommittee held hearings today on proposed “reforms” to the patent system. IP bloggers J. Matthew Buchanan and Dennis Crouch have a lot of useful information posted for those who are interested. I just finished watching the hearings on C-SPAN earlier this evening and have a few views and thoughts of my own. Congress is free to consider and use them at no charge.

Not surprisingly, many of the big industry representatives got their digs in about the “patent trolls” who somehow “abuse” the system by going after reputable corporate giants (who don’t “pirate” technology but steal it fair and square). I found David Simon of Intel Corp. to be particularly amusing in this regard. He repeatedly mentioned one company that bought a patent for $50,000 and then asked for an injunction when it prevailed in its infringement suit against a giant infringer. Why should they make that kind of money from something they bought for only fifty-grand? (Guess we’d better not ask the founders of Microsoft what they think of such outrageous returns.) He also pointed out — correctly — that when a patent owner takes a case to trial and wins, he often asks for and gets an injunction. The infringer, of course, can “buy” its way out of the problem, but the billionaires would rather have Congress solve the problem for them. I was hoping to hear one of the senators ask, “so what you’re really asking us is to bail you out when you infringe and get caught,” but no one did.

Joel Poppen from Micron Technologies took an interesting approach I can best describe as, “When we do it, it’s OK. When others do it, it isn’t.” (Libel avoidance note: He didn’t say that — I did.) I think he mentioned that Micron has 12,000 patents, and the company continues to get more. He, too, bemoaned the existence of small patent holders who “abuse” the system.

Robert Armitage from Eli Lilly was remarkably candid and even-handed and likened many of the reform proposals to “killing the patient” rather than “removing the cancer.” Coming from a big company representative, his comments were refreshing and seemed genuinely directed to what’s best for the country. At least he seemed aware of the possibility that today’s “reform” might be tomorrow’s disaster, even for big companies whose principal products consist mainly of good ideas.

William Parker from Diffraction, Ltd., and Dean Kamen from Deka Research testified from the small inventor/business side of the aisle. Both were effective in stating the challenges facing small inventors and served as good examples of successful entrepreneurs whose success depended on effective patents. Countering the argument that patents shouldn’t reward those who don’t make an actual product, Mr. Parker testified to the effect that in today’s world, “the product of one’s mind can be far more valuable than the product of one’s hands.”

The issue as I see it is this. Brainpower is no longer simply a commodity to be bought for X dollars per year, with all innovations then belonging to the employer. Smart people are realizing that the amounts they take home as salary are nothing as compared to what’s earned by the assignees of their inventions. Our patent system, which vests patent rights initially in the individual rather than employer, threatens those who have made fortunes off the brilliant work of their employees. Our current system makes it possible for creative inventors to reap benefits from their innovations without having to build factories or raise huge capital. Those with the factories and capital don’t like that. The thought that someone can think up a better mousetrap and beat them at their own game scares them. That’s the battle. And that’s what’s behind this talk that “patents are not meant to protect those who don’t make a product.”

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Photo of Philip P. Mann Philip P. Mann

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to…

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to the court (a judge) as well as before juries. In addition to trial court work, Mann has performed appellate work before the United States Court of Appeals for the Federal Circuit.
Mann began his legal career in Chicago and Milwaukee before heading to Seattle where some of America’s most innovative companies were developing new technologies at breakneck speed. Before founding his own firm, he was a member of the Seattle Intellectual Property Law Firm, Christensen O’Connor Johnson Kindness.
Mann is an “AV” rated lawyer by Martindale Hubbell, indicative that he has reached the height of professional excellence and is recognized for the highest levels of skill and integrity.
He holds a degree in Electrical Engineering from the University of Illinois (Urbana) and received his law degree from the Washington University School of Law in St. Louis, Missouri. He is admitted to practice in the States of Illinois and Washington, as well as before the United States Patent and Trademark Office, and in various courts around the country.