Inventors Deserve a ‘Fair Shot’

As part of his last State of the Union, President Obama introduced an American belief that I had not heard: “Everybody who works hard should get a fair shot.”

By “fair shot,” the President was implying that anyone working “hard” should be successful. This statement has a lot of implications that at first glance might be missed. For instance: should we fight to give a “fair shot” to the wooden wheel maker who works tirelessly all day, week, month, year, but who hasn’t been really needed since the early 20th century?

No. Definitely not.

How about a person distributing eight-track players? Or, how about a person still pitching whale oil lamps?

No and no.

The “fair shot” that is an American belief is that the government won’t stop you from working hard. It is each individual’s choice to work hard at something that is productive (or not). Therefore, the outcome at the end of the race is likely going to be different for everyone.

However, besides the President’s creation of a new American belief, his statement was more perplexing because of his multi-year attack of inventors and innovators. The President’s attack on inventors has long been able to be summed up as, “Work as hard as you want, we are not going to help you defend your idea. We are not going to give you a fair shot.”

The President has also not been quiet about his support to weaken the patent system. In fact, in 2014’s State of the Union the President called for patent reform stating, “Let’s pass a patent reform bill that allows our businesses to stay focused on innovation, not costly, needless litigation.” This was a rare mention of a seemingly wonky issue in the middle of a State of the Union, but the President wanted to be clear that he was putting his weight behind proposals that were floating around Congress.

The proposals that were in vogue at the time all made it harder to enforce Intellectual Property laws – which are already prohibitively expensive to most inventors. The ideas being discussed in 2014 ranged from creating a new “loser pays” system that the big market incumbents could use to scare away competition to completely outlawing patents involving software a move akin to banning patents involving steel during the industrial revolution.

Later in 2014, following the marching orders of the Democratic President the Republican led House passed a patent bill 325-91. Their bill did not include a few of the worst sections that were discussed as a part of the debate – like completely banning software patents – but their intentions were obvious as every section of the bill made enforcing Intellectual Property either harder or costlier. And, the Republicans, in the majority, failed to ask even one inventor to testify.

Fortunately, the Senate stopped short of following down the same ill-intentioned path and did not pass a bill that Congress.

In 2015, the story changed. It was clearer that inventors work hard to create inventions. They work hard to pay for patents – giving them the legal right to defend their ideas. And, if the inventor is among the few to be awarded a patent, after years of hard work, that patent should be backed by the US government that awards the patent. In 2015 Congress, despite a very concerted effort, didn’t pass patent related legislation.

Fast forward to present, 2016, and inventors are gaining even more momentum. In 2016, the President’s State of the Union speech no longer mentioned patent form. There are no plans to bring a patent bill to the floor anytime soon. Maybe, as the year continues, the President might throw his support behind innovators.

Even at the Consumer Electronics Show (CES), patents were protected. Patent infringement accusations are basically a part of the annual CES tradition, but the Consumer Technology Association, which hosts the conference, has even developed policies to instruct attendees about dealing with Intellectual Property infringement. The rules are mainly about “civility”, but it is the infringer that CTA gives the edge.

While an infringer is never threatened with removal from the conference in the rules, IP owners are explicitly told that if they violate the arbitrary rules set up by CES that they can be kicked out of the conference and refused floor privileges.

Add to those rules CTA’s consistent support of patent legislation, the same that the President previously supported, which makes defending Intellectual Property harder, more expensive, and less likely to prevail at every stage, and their position regarding inventors obvious.

When an exhibitor showed a patent-infringing product at this year’s show, CTA let federal agents in to shut them down. Inventors win again.

Morning Consult