Similarly, copyright laws allow authors, artists, filmmakers, software coders, and countless others to publish and protect their unique expressions. Trademark laws allow companies to build their reputation and, once established, defend their brand. In a 2012 report, the Department of Commerce reported that “IP-intensive industries accounted for about $5.06 trillion in value added, or 34.8 percent of U.S. gross domestic product (GDP), in 2010” and millions of jobs.¹ IP lawyers like to point out that a strong IP system is so important to the success of our nation that the Founding Fathers decided to provide for an IP regime in the U.S. Constitution. The United States has led the world in innovation due in part to our strong IP laws. And in our modern economy, where we have shifted from manufacturing goods to conceiving of new designs, new problem-solving techniques, and new ways of entertaining, intellectual property becomes an even greater accelerator of genius. These are facts.

But in this time when we are surrounded by so many amazing patented technologies, it does not take long to find countless articles and blog posts screaming that IP laws are stifling innovation and ruining the economy.² It is not surprising these days to meet with members of Congress, or their staff, or to attend a congressional hearing only to have them explain how “concerned” they are with IP laws, that IP laws unnecessarily drive up the price of consumer goods and are an unjustified “tax on innovation.” Detractors of intellectual property have done a better job of vilifying IP laws than practitioners have of making the obvious case for their continued strength. And at this point, it may be fair to say that we have lost the argument.

We are not wrong: intellectual property laws are great for society. But for too long we took for granted that everyone agreed with us. Clearly, we need to do a better job of explaining how important IP laws are to our society—to everyone from consumers to cancer patients, big manufacturers to the smallest startups—by educating the media and our policymakers, and winning the hearts and minds of the consuming public.

This vilification of intellectual property is a relatively recent phenomenon: while it has only been in the last few years that intellectual property has fallen out of favor, it has been a very steep drop. The question is why we have fallen so far behind.

Vilification of Intellectual Property

The tide seemed to change a few years ago when Congress considered two antipiracy bills: the House’s Stop Online Piracy Act (SOPA),³ and its Senate companion, the Protect IP Act (PIPA).⁴ This legislation was designed to crack down on websites selling stolen copies of movies, music, software, books, and photographs, and to block websites that sell counterfeit goods. Opponents deemed this effort by lawmakers and stakeholders an attack on Internet freedoms, even an attack on free speech, claiming that it would “break the Internet.” And everyone seemed to notice when Wikipedia decided to shut down for a day.⁵ Having killed those bills, opponents of IP laws now sling the term “SOPA/PIPA” as if an epithet to define toxic laws. The public outcry over this legislation can still be heard echoing in the halls of Congress.

But the more recent uproar over patents has been even louder. General counsel at large companies, joined by small businesses of every kind, have written to and testified before the House and Senate asking for relief from “patent trolls.”⁶ Internet companies and other household names have all joined forces to hire and form dozens of anti-patent advocacy groups.⁷ And you know your industry is in trouble when late night comedians are poking fun at it, which happened when John Oliver made patent trolls the subject of one of his first rants. Trademark owners have fared better, but have not gone unnoticed. Many small businesses have complained that they are being sued by big business for using names that couldn’t possibly confuse the public. More than 40 professors recently sent a letter to Congress opposing proposed federal trade secret legislation on the basis that IP rights prevent “information diffusion” and that new trade secret laws will further “restrict the free flow of information.”⁸ They actually argue that it is better to have a system that allows technologies representing billions of dollars of private research and development (R&D) investment to “leak” than to allow those companies to effectively enforce their trade secret rights.

While you may think these folks are way off, you should know that—with the exception of trade secret laws—many of the most influential officials in the administration, members of Congress and their staff, and U.S. Supreme Court justices and their clerks all agree with those skeptical of IP laws. The reason is simple. There have been enough cases of egregious abuse to support complaints about intellectual property, and so much bad press that these folks are only hearing that side of the story.

In one of the most well-known cases, a single patent troll in Texas sent thousands of demand letters to small businesses asking for sums in the thousands to avoid being sued.⁹ In 2015, a record 67 percent of all new patent infringement cases filed in district court were brought by nonpracticing entities.¹⁰ As a result, in the last Congress alone (2013–2014), 14 different bills dealing with some aspect of abusive patent assertion were introduced.¹¹ Last year, we heard congressional testimony from big companies forced to spend tens of millions of dollars to fend off baseless claims of infringement, and from small businesses that were either forced to hand over revenue they needed to reinvest in their company or driven out of business by demands of trolls.

The White House has wholeheartedly joined the call to take on patent trolls in a very public way. In 2013, the President’s Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy drafted a report detailing five executive actions and seven legislative recommendations to fight patent trolls.¹² The next year, during a town hall in Los Angeles, President Obama stated: “One of the biggest problems that we’ve been working on is how do we deal with these folks who basically are filing phony patents and are costing some of our best innovators tons of money in court.”¹³ That’s right, the president of the United States said he thinks that patents are causing one of the biggest problems his administration is facing. He even mentioned patent reform in his 2014 State of the Union Address.¹⁴

Of late, the U.S. Supreme Court has also been extremely critical of intellectual property in several high-profile cases. In all three of the most recent cases in which the Supreme Court was asked to limit what could be patented, Bilski,¹⁵ Mayo,¹⁶ and Alice,¹⁷ each time it dealt significant blows to patent owners by holding that certain business methods, software, and medical tests could not be patented. These are only three of the many recent Supreme Court cases casting a huge cloud on the validity of countless issued patents and pending applications. As district courts and the U.S. Patent and Trademark Office (USPTO) follow the Supreme Court’s lead,¹⁸ many believe we are seeing just the beginning of what Circuit Judge Kimberly Moore predicted would be “the death of hundreds of thousands of patents, including . . . many computer implemented and telecommunications patents.”¹⁹ Media coverage of the actions taken by all three branches of government to curb patent enforcement has been extensive.

In stark contrast, trade secret legislation sailed through Congress. S. 1890, the Defend Trade Secrets Act of 2016, passed the Senate by a vote of 87-0 and passed the House by a vote of 410-2. That is because, unlike other areas of intellectual property, it has not been the victim of so much bad press. Quite the opposite, the media has been on board from the beginning.²⁰ I cannot tell you how helpful it was to meet with congressional staff just after 60 Minutes ran a story that trade secret theft “is costing U.S. corporations hundreds of billions of dollars and more than two million jobs.”²¹ With favorable press behind it, there was a strong consensus across Congress, the administration, and industry that stronger trade secret protection was needed to safeguard the huge R&D investments that U.S. companies make to develop their great new products. Funny, protecting investments in R&D is also a key reason for having a strong patent system.

With a very few exceptions, however, the IP community has not done a good job of making its case for why strong IP laws are good for society, how much better off we are with them than without. Trade associations that have in the past been effective advocates for strong IP laws are now comprised of representatives of both companies that rely heavily on their intellectual property to protect their investments and those that have been hit hard by patent trolls, or see intellectual property as a threat to their business models. These organizations have been unable to reach a consensus in support of intellectual property. And organizations established to promote strong patent laws have been quickly dismissed as advocates for evil patent trolls. In contrast, patent reform advocates and their associations are cast in heroic terms, referred to as the ones “stopping the patent troll assault on the U.S. economy,” a “tsunami of bogus patent claims [that] is killing jobs and innovation, while costing the U.S. economy $1.5 billion a week,” and protecting companies and consumers from “the patent extortion racket.”²² It is easy to understand why folks would side with the heroes and line up against the villains.

Change the Conversation to “Strong IP Laws Are Necessary”

IP professionals know that society reaps tremendous benefits when strong IP laws are in place. It’s not even a close question for us. Strong IP rights are necessary for inventors, creators, and businesses to protect their investment in time and resources. Without strong IP protections, modern companies cannot justify expending the massive sums required, diverting huge resources, and spending years to develop innovative new products. They need the assurances strong IP laws offer to ensure they stand a reasonable chance of recouping their investment. Companies like Boeing, Corning, DuPont, GE, and Eli Lilly, to name just a few, would not be able to allocate the billions of dollars they invest every year to develop the next great product. Movie producers would not be able to make the next blockbuster film, and authors would not get the book deals that let them write for a living. And while some industries require very little to get off the ground, our manufacturing, drug, and medical device companies certainly could not compete without laws to safeguard their huge investments in R&D.

Consumers benefit greatly too. Without these protections, investment in R&D would diminish, and the public would see fewer substantial improvements and more products representing mere incremental change. Without strong intellectual property rights, startups and other small businesses sometimes would not secure the investments they need to grow their business, and could not stand up to being bullied by a big company with the money and resources to take their market share. Without strong intellectual property rights, we will lose millions of jobs. Without strong intellectual property rights, inventors of the next great cure may not obtain the financing they need to develop and bring their new products to market.

The recent U.S. Supreme Court cases striking down patents as ineligible should give everyone pause. We live in an era where every phone, car, and even washing machine is an improvement over earlier models based on its new software running on a chip. So permitting inventors to patent software-related inventions—when new—certainly promotes innovation as our Founding Fathers intended when they established the patent laws. The Supreme Court’s recent cases, however, make it difficult to protect these new inventions and render investment in these new products dubious. The Supreme Court’s decisions striking down patents involving human DNA should make everyone shudder as they consider how many lives would not have been saved but for these ingenious products. Myriad spent tens of millions of dollars to cut down by years the time needed to identify the gene that increases the risk of a certain form of cancer, saving countless lives in the process. Similarly, Sequenom’s development of a simple blood test to test the DNA of a fetus protects countless unborn children from the risks posed by previous invasive methods. It is easy to cry for access to technology years after someone else took the financial gamble to develop these products, when the invention’s use is now an everyday occurrence. But without the expectation that the invention would be protected for a limited time, it is much less certain that those companies would have been able to justify making the investment in their lifesaving products. President Lincoln was right.

We have to win back the support of the White House, Congress, the courts, and the consuming public. We need to protect investment in R&D and make sure these small businesses do not fail. But to do that, we need to win the battle in the media by telling the story of investment in R&D, of the countless life-altering products that came to market thanks to the incentives created by the patent system, of the small businesses that got off of the ground thanks to their patents.

While more work certainly needs to be done to address the troll problem—bad actors asserting bogus patents should be stopped and even punished—much has already been done to curb litigation abuse. We need to tell that story too. The U.S. Supreme Court has issued decisions on subject matter eligibility and definiteness, and loosened the standard for obtaining attorney fees. The USPTO’s Patent Trial and Appeal Board (PTAB) has been invalidating bad patents in huge numbers, as have the federal courts. The Federal Trade Commission (FTC) has aggressively pursued demand letter abuse by the most outrageous trolls, while the U.S. International Trade Commission (USITC) has limited access to its procedures for obtaining injunctive relief by tightening up the definition of a “domestic industry.” And the Judicial Conference has established requirements for detailed pleadings in patent cases. We need to be reasonable and recognize that the USPTO and courts should act quickly to invalidate bad patents and protect companies from harassment by unscrupulous patent owners. While all of these actions have gone a long way in addressing the patent troll problem, IP attorneys and their corporate clients who value their intellectual property now need to work harder to get the word out.

We in the profession also need to provide examples of how important the IP system is to U.S. businesses, how strong IP laws protect the inventions of a little guy from being snatched away by an industry goliath. We should tell the story of Michael Powell, who pitched a new design for a saw guard to save the fingers of countless employees of a big home repair store, only to have his invention stolen by the company to which he presented it. Thankfully, he had secured patent protection, and in the end prevailed over the big guy. But during discovery he learned that the company’s top executive told his staff, in language that cannot be fully quoted here, “... him. Let him sue us.”²³ Without his patents, Powell would have received nothing for his invention, his story then discouraging others from sharing their great inventions.

David Kappos, former director of the USPTO, has spoken, testified, and blogged to explain that intellectual property is essential to America’s ability to compete around the world.²⁴ Others have joined Kappos in singing the praises of the patent system to correct widespread misperceptions of intellectual property, but it is a small chorus.²⁵ It has just not been enough.

For those of us who want to do something about IP laws being under attack and underappreciated, here’s a call to all IP attorneys to band together, along with their inventors and corporate clients, and write to your Congressman and Senator, the mainstream press, and others, to win the hearts and minds of members of Congress and consumers alike by explaining that a strong IP system is necessary to incentivize investment in the development of the inventions that continue to make America the leader in technology and innovation. IP laws do accelerate genius. The facts are on our side, we just need to use them to change the conversation and make our case, but this time not just in a court of law.

Endnotes

1. Econ. & Statistics Admin. & U.S. Patent & Trademark Office, U.S. Dep’t of Commerce, Intellectual Property and the U.S. Economy: Industries in Focus, at vii (2012), available at http://www.uspto.gov/sites/default/files/news/publications/IP_Report_March_2012.pdf.

2. See, e.g., Brian Barrett, The US Patent System Is Killing Innovation, Gizmodo (Aug. 16, 2011), http://gizmodo.com/5831354/the-us-patent-system-is-killing-innovation; Mike Masnick, When Patents Attack: How Patents Are Destroying Innovation in Silicon Valley, Techdirt (July 25, 2011), https://www.techdirt.com/articles/20110724/22250715225/when-patents-attack-how-patents-are-destroying-innovation-silicon-valley.shtml; Rob Preston, Is Patent Insanity Ruining Software Innovation?, InformationWeek (Nov. 30, 2005), http://www.informationweek.com/is-patent-insanity-ruining-software-innovation/d/d-id/1038400; Melody Walker, Economists Say Copyright and Patent Laws Are Killing Innovation; Hurting Economy, Source (Mar. 9, 2009), https://source.wustl.edu/2009/03/economists-say-copyright-and-patent-laws-are-killing-innovation-hurting-economy/.

3. H.R. 3261, 112th Cong. (2011).

4. Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (Protect IP Act), S. 968, 112th Cong. (2011).

5. Wikipedia Blackout: 11 Huge Sites Protest SOPA, PIPA on January 18, Huffington Post (Jan. 18, 2012), http://www.huffingtonpost.com/2012/01/17/wikipedia-blackout_n_1212096.html.

6. See The Impact of Abusive Patent Litigation Practices on the American Economy: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015) (testimony of Krish Gupta, Senior Vice President & Deputy General Counsel, EMC Corp.), available at https://www.judiciary.senate.gov/imo/media/doc/03-18-15%20Gupta%20Testimony.pdf.

7. Google is now the third largest corporate lobbying company, and patent reform was one of the biggest issues for Google, Amazon, Facebook, and Apple in the second quarter of 2015. Issie Lapowsky, What Tech Giants Are Spending Millions Lobbying For, Wired (July 23, 2015), http://www.wired.com/2015/07/google-facebook-amazon-lobbying/.

8. Sharon K. Sandeen, Seeing Trade Secret Law through the Lens of Information Diffusion, Patently-O (Dec. 1, 2015), http://patentlyo.com/patent/2015/12/through-information-diffusion.html.

9. Press Release, Fed. Trade Comm’n, FTC Settlement Bars Patent Assertion Entity from Using Deceptive Tactics (Nov. 6, 2014), https://www.ftc.gov/news-events/press-releases/2014/11/ftc-settlement-bars-patent-assertion-entity-using-deceptive.

10. 2015 Patent Dispute Report, UnifiedPatents (2015), http://unifiedpatents.com/2015-year-end-report/.

11. Patent Progress’s Guide to Federal Patent Reform Legislation: 113th Congress, Pat. Progress, http://www.patentprogress.org/patent-progress-legislation-guides/patent-progresss-guide-patent-reform-legislation/#113congress (last visited May 4, 2016).

12. Exec. Office of the President, Patent Assertion and U.S. Innovation (2013), Article no longer available.

13. Julian Hattem, Obama Urges Patent Reform, The Hill (Oct. 10, 2014), http://thehill.com/policy/technology/220371-obama-urges-patent-reform.

14. David Kravets, History Will Remember Obama as the Great Slayer of Patent Trolls, Wired (Mar. 20, 2014), http://www.wired.com/2014/03/obama-legacy-patent-trolls/.

15. Bilski v. Kappos, 561 U.S. 593 (2010).

16. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 10 (2012).

17. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).

18. See Dennis Crouch, New Section 101 Decisions: Patents Invalid, Patently-O (Sept. 4, 2014), http://patentlyo.com/patent/2014/09/section-decisions-invalid.html; Benjamin E. Leace & Christopher H. Blaszkowski, Curiouser and Curiouser: Is “Alice” the Long-Sought Troll Killer?, Legal Intelligencer (Apr. 1, 2015), Article no longer available; Rob Sterne & Gene Quinn, PTAB Death Squads: Are All Commercially Viable Patents Invalid?, IPWatchdog (Mar. 24, 2014), http://www.ipwatchdog.com/2014/03/24/ptab-death-squads-are-all-commercially-viable-patents-invalid/id=48642/.

19. CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1313 (Fed. Cir. 2013) (Moore, J., dissenting in part).

20. See Ellen Nakashima, U.S. Indicts 6 Chinese Citizens on Charges of Stealing Trade Secrets, Wash. Post, May 19, 2015, https://www.washingtonpost.com/world/national-security/us-indicts-6-chinese-on-charges-of-stealing-trade-secrets/2015/05/19/f11fd35e-fdd8-11e4-805c-c3f407e5a9e9_story.html; Bill Berkrot, Five Charged in U.S. with Stealing Secrets from GlaxoSmithKline, Reuters (Jan. 21, 2016), http://www.reuters.com/article/us-glaxosmithkline-indictments-idUSKCN0UY2V2; Karen Gullo, California Man Guilty of Stealing DuPont Trade Secrets, Bloomberg (Mar. 5, 2014), http://www.bloomberg.com/news/articles/2014-03-05/california-man-guilty-of-stealing-dupont-trade-secrets.

21. 60 Minutes: The Great Brain Robbery (CBS television broadcast Jan. 17, 2016).

22. Press Release, Consumer Tech. Ass’n, CEA Joins United for Patent Reform Coalition (Mar. 4, 2015), Article no longer available.

23. See Kyle VanHemert, Home Depot Ordered to Pay $25 Million for Stealing Inventor’s Safety Gizmo, Gizmodo (May 14, 2010), http://gizmodo.com/5539322/home-depot-ordered-to-pay-25-million-for-stealing-inventors-safety-gizmo.

24. See David J. Kappos, Strong Patent System Essential to Strong Innovation Economy, The Hill (Aug. 20, 2015), http://thehill.com/blogs/congress-blog/technology/251406-strong-patent-system-essential-to-strong-innovation-economy; David J. Kappos, Why America’s Patent System Is Not Killing Innovation, Fortune (May 8, 2015), http://fortune.com/2015/05/08/why-americas-patent-system-is-not-killing-innovation/.

25. See Kevin H. Rhodes, More Balance Needed on Patent Reform, The Hill: Congress Blog (July 13, 2015), http://thehill.com/blogs/congress-blog/technology/247573-more-balance-needed-on-patent-reform; Robert L. Stoll, Attacks on Patent System Are Unfounded, The Hill: Pundits Blog (Oct. 22, 2015), http://thehill.com/blogs/pundits-blog/technology/257702-attacks-on-patent-system-are-unfounded; Joseph Allen, Abraham Lincoln Loved Our Patent System. Let’s Not Tear It Down, Wash. Post: In Theory (Nov. 16, 2015), https://www.washingtonpost.com/news/in-theory/wp/2015/11/16/abraham-lincoln-built-our-patent-system-lets-not-tear-it-down/.