Patent Trolls: Courts Should Legislate From the Bench - The American Spectator | USA News and Politics
Patent Trolls: Courts Should Legislate From the Bench

Ever since patent reform hit the legislative docket, a vocal minority of confused conservatives have tried to cast such reform as a leftist boondoggle, in spite of the fact that every leftist constituency, from trial lawyers, to university administrators, to Big Pharma, hates patent reform. One of the arguments made by these rather well-meaning but befuddled people is that patent reform is something best left to the court system, rather than a potentially overbearing legislature. After all, they say, the courts are more likely to be restrained, and to narrow the law as written, rather than making sweeping changes.

Unfortunately, what is meant by conservatives when they talk about judicial reform, and what is meant by the patent trolls gleefully making useful idiots of them, are entirely different animals. And this past week, the smoking gun came down the line from the ludicrously pro-patent troll IPWatchdog, which published an article arguing that the Supreme Court should legislate from the bench in favor of patent trolls.

I wish I was kidding. Here’s the money quote:

The courts will legislate if they believe Congressional legislation will pass and tamper with their turf. Inventors can use this understanding to push the courts to fix their misguided meddling. Inventors should push legislation into Congress and loudly support its passage so the Supreme Court believes it will pass. If they believe it, they will legislate for us and we don’t have to worry about passing anything through Congress.

In other words, screw the Constitution, screw the separation of powers, screw the notion of an independent judiciary — make the court keep our gravy train going, whatever the cost!

Of course, ironically, the author of this whopper claims that it is the anti-troll forces who have destroyed these bedrocks of the constitutional system, which almost makes the conservative argument for the court as a check on trolls seem plausible. After all, the source of this complaint by the trolls is nothing more than sour grapes over the failure of their meritless cases.

Yes, meritless. It is simple fact that the Founders never meant for patents to be treated with the absolutist zeal that keeps trolls in business. Rather, they intended them to be instrumental to the promotion of science and the useful arts: neither of which seems particularly well-served by a patent litigation system that costs firms $60 billion in wealth per year.

Fortunately for those of us who still believe in the original understanding of the role of patents, and in the rule of law, the courts are not simple spoils-distributing Star Chambers for trial lawyers (well, okay, except the East Texas District Court). Unfortunately, this also means that they are hardly suited to the role of reforming the law’s approach to patents, which has systemic problems not susceptible to the precedent-based case by case method of a court system. Patent trolls may want the Supreme Court to legislate from the bench — and conservatives should take note that this is all the reason they need to oppose the trolls — but those of us who want a patent system based on sound logic and justice would prefer to see actual legislation solve the issue.

Here’s hoping Congress will listen and finally squash the increasingly desperate leftist leeches in the troll community under the weight of the law.

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