The Orwellian Attack on Section 101
by
Sen. Thom Tillis (C-Span/YouTube screenshot)

Imagine the following scenario: You spend your life slaving away at building some ingenious new device in your garage. After years of painstaking work, testing, and sleepless nights, you finally produce your device, patent it, and take it to market.

However, before you can take it to market, someone serves you with a lawsuit. Another person has apparently “patented” the machine you just built, and even though they’ve never put one second into developing it, they claim to own the product of your work. But, they say, if you just pay them a few thousand dollars, they’ll go away and not threaten your business. Being someone with pride, who doesn’t approve of protection rackets, you tell them to stuff it.

So, you fight. And wouldn’t you know it, you take your case to the U.S. Patent and Trademark Office USPTO), and their Patent Trial and Appeal Board (PTAB) finds that the “patent” you’re being sued over isn’t valid. The trial lawyers who tried to extort you slink away for the day. But then, they come back with a different “patent.” You see, your machine includes one part that spins, and they have a patent for “spinning metal things” that you now have to contest before you can take your world changing invention to the market.

Under modern patent law, this second lawsuit would get slapped down so fast that it would make your head spin. But, thanks to the patent snowflakes among America’s trial lawyers, who find any judgment on the merits of their bogus patents triggering, and thanks to enablers of theirs in Congress, that may soon cease to be the case.

This is because the lawyers and their corrupt friends have come up with a way to do an end-run not just around the numerous Supreme Court cases that have smacked them down over and over, but around one of the key, foundational tenets of American patent law. That tenet is expressed in Section 101 of the Patent Act, passed in 1870, which states:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

The relevant phrase here is “new and useful,” a set of requirements that seems commonsensical, but that in actuality provides the basis for distinguishing patents for genuine inventions from mere pieces of paper meant to prop up lawsuits over unenforceable nonsense. In other words, it’s what prevents someone from simply patenting “spinning metal things,” which is neither a new invention nor, by itself, a useful one. In practice, this means that Section 101 is for frivolous patent litigants what Room 101 is to dissidents in George Orwell’s 1984: the equivalent of being broken by their worst fear.

It’s no surprise, then, that trial lawyers and vampiric patent-holding companies known colloquially as patent trolls, hate Section 101 with a passion and want to defang it. And, ironically, Sens. Chris Coons (D-DE) and Thom Tillis (R-NC) have proven what a bad idea this is by introducing a bill that may be new, but is anything but useful. Among other changes, the bill removes the language requiring that patentable inventions be “new and useful” altogether, instead relying on a legal framework for patents that can best be summarized as “patent first, and ask questions later.” In so doing, the bill aims to wipe out over a century of patent law, and return America to the bad old days when trial lawyers could make endless hay off of suing inventors, who were forced to spin their wheels… wait, am I still allowed to say “spin their wheels”? Who knows, that might be patentable under the Coons and Tillis bill.

Let’s be absolutely clear: this bill, and the coalition of leeches pushing it, is anti-American garbage. It is impossible to sustain the rule of law surrounding intellectual property in a world where almost everything can not only be patented, but also be the subject of contradictory, overlapping patents, with the only way to tell which of those patents is legitimate being a legal war of all against all. And while the patent bloodsuckers like to wrap their policies in the mantle of property rights, a world where those property rights are the subject of endless haggling is one where the concept of property rights will come to be seen as useless, when properly applied, it should be the fruit of innovation. It is not surprising that the vampires lurking in America’s patent system, having lost so often in the existing legal system, might seek to ban the legal equivalent of holy water and stakes. But we can only hope that Congress is not taken in by their hypnosis.

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