Patent Law Gone Awry: How Bob Goodlatte's Bill Combines Useless Rigidity With Dangerous Discretion


By Richard Epstein

On February 5, 2015, Republican Bob Goodlatte introduced his so-called “Innovation Act” for patent reform on behalf of a bipartisan coalition of House members. The Act is a replica of the 2013 bill that passed the House but did not make it into law. This new proposed legislation comes hard on the heels of the passage of the 2011 American Invents Act (AIA), itself barely three years old. In an earlier Forbes essay, I explained why I thought that Goodlatte’s proposed 2013 bill could easily smother further technological innovation. In the two years that have passed, the basic landscape remains unchanged. The bipartisan support for the legislation regrettably offers no evidence of the bill’s soundness. It only offers evidence that strong populist pressures from small businesses, some of whom may well have been subject to abusive litigation, continue to exert powerful influence over the political process. So strong, in fact, that a strongly worded letter of January 20, 2015 from the various heads of the Big Ten universities expressing their immediate concerns with the impact of this legislation on the technology transfer process continues to go unheeded. It is indeed a sad commentary on the political process that there have been no modifications in the basis text of Goodlatte’s patent litigation bill in the over one-year hiatus between the first and second iterations.

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