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The latter two alternatives would avoid the president’s other prerogative: to protect those found guilty in criminal proceedings through pardons or commutation of sentences.


Professor of public interest law

George Washington University

Law School


The patent-protection debate

The paired columns appearing under the headline “Patent reform … or ruin?” (Commentary, Wednesday) address a very important issue: our broken patent system. In his column, Mark Chandler refers to the “entrepreneurial speculators whose only innovation is new ways to game the system.” But in fact it has been the large corporations that have gamed the system for years by preventing many small inventors from enforcing their valid claims by initiating costly litigation that makes it prohibitively expensive for many inventors to press their claims in court.

This is why a whole industry sprang up to protect the individual’s patent rights, albeit for a fee (often a share of the patent rights). Blackberry maker Research in Motion was offered the opportunity years earlier to purchase the rights to the technology for which it later paid $600 million for a fraction of that figure but chose instead to use it without paying anything for it.

Mr. Chandler’s proposal that patent infringement penalties be tied to “the actual economic value of the innovation reflected in the patent” is laughable. This essentially would eliminate any penalty for patent infringement. Corporations would be encouraged to use patented material without first obtaining the rights and would only have to pay for the value of the patented material if they failed to outlast the inventor in mounting, endless law suits. It would be as if the full penalty for robbing a bank was that you had to give the money back.

In the adjoining column, Phyllis Schlafly points out that the new patent bill “would shift decision-making about damages for patent infringement from market valuations to judgments by judges and juries.” This tends to favor the large corporation over the little guy. The corporation argues that if it is forced to pay a penalty, its entire future could be put in jeopardy (or perhaps its “$4 billion per year [spent] on R&D;, 90 percent of that in the U.S.“). It is not unusual for juries to acquit prominent local figures and corporations just because they were seen by the jury to be too important to the community to lose. After all, why not let the corporation cheat the little guy if it will save jobs in the community?

To ensure our economic vitality, we have to protect the individual inventor as well as the corporate inventor. The solution lies along the lines that Mrs. Schlafly proposes: more patent examiners, confidentiality of the process and keeping decision-making in the hands of the experts rather than juries. If we’re not careful, we could end up with legislation that does to intellectual property rights what the Supreme Court’s Kelo decision did for real property rights — made them enforceable against strong pressure only if you have sufficient financial and political clout.



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