For proponents of patent reform, 2016 has so far been decidedly a mixed bag. Election years are rarely good turf for major legislative accomplishments, simply because the amount of debate and deliberation required to pass such things is quite out of keeping with the ADD style of media coverage during elections, and with the distraction experienced by lawmakers.
But 2016 need not be a year where the reform cause stagnates. Comprehensive change will most likely be impossible before next year, but there is one issue that a focused push by reformers could most likely accomplish in the remaining days of Congress this year: the issue of venue reform.
For those not in the know, venue reform refers to a much-needed overhaul of the system whereby courts are selected for patent lawsuits to be heard. Currently, due to abuses of the rules, companies that exist only to sue over violations of spurious and ill-defined patents (the infamous “patent trolls”) make a business of dragging their victims before strategically chosen, infamously biased courts. The worst offender in this regard is obviously the infamous Eastern District Court of Texas, whose jurisprudence and procedure stack the deck so obviously in favor of trolls that it inspires bipartisan contempt.
Worse still is the fact that the East Texas District Court, despite overseeing a relatively unpopulated region and thus having insufficient resources to try large numbers of cases, tries more patent cases than the rest of the country combined. That uptick has clearly come as a result of trolls headquartering their businesses in East Texas. Whereas the Eastern Texas District Court faced an already oversized 15 percent of all patent cases in 2011, that number has ballooned the more trolls have caught wise. In 2013, the court faced 25 percent of all patent cases, and in 2015, it faced a staggering 45 percent. And of those cases? 94 percent were brought by non-practicing entities, the technical term for patent trolls.
In the face of this textbook abuse of the legal system, it’s no surprise that venue reform is so urgent, nor that it earns support from a broad swath of the legal academic community. Moreover, given the fact that all the opposition to this reform comes from rent-seeking Leftists like trial lawyers, college administrators, and the subsidy gobbling pharmaceutical industry, you’d think conservatives would have an easy time backing it and pushing it through the Republican controlled House and Senate.
There are, however, two problems: Firstly, there’s the obvious problem that the patent trolls are masters of disinformation, and have been going out of their way to try and kill even the most incremental reforms. This push, however, seems only capable of delaying reform rather than killing it, and has pretty much run its course.
However, there is another problem: Many supporters of patent reform, despite being well-intentioned, have trouble focusing on just one issue, instead proposing legislation that is too sweeping to pass at this juncture. Indeed, one effective way for enemies of reform to derail the easy win that is venue reform is to try and draw support away from bills that address this issue narrowly toward legislative pipe dreams that are too radical to pass. In other words, the trolls have an easy way to make the perfect the enemy of the good when it comes to this issue.
Are there other issues? Obviously. But patent reform needs to start someplace. When it comes to the prospects for patent reform this year, my fellow supporters would do well to internalize the spirit of the Hebrew word dayenu — “it would be enough.”
Don’t get me wrong: I would be thrilled to see a comprehensive patent reform bill passed, and to be entirely proven wrong. But for now, the point needs to be made that, even if we can only reform venue for now, dayenu.