Sunday, March 21, 2010

The Citizen's Patent Police

I've received news of a recently introduced Senate amendment to current patent law that would eliminate qui tam actions on false patent markings except by competitors. I wrote to my representatives in Congress to urge them to reconsider this amendment for the reasons set forth below:

I have just finished reading this press release from the PubPatent Foundation. Here are a few quotes of interest:

"The false patent marking law imposes a fine on companies that label unpatented products as patented 'for the purpose of deceiving the public.' Currently, the law allows any citizen to sue false markers on behalf of the federal government and any fine awarded by the court is split between the citizen who brought the case and the government. Such 'qui tam' suits, which have been part of our country since its founding and originally derived from custom in England, provide an incentive for citizens to spend time and money to bring such cases so that the government does not have to do so itself. While not burdening government officials, the suits nonetheless also supply the federal government with income."

From their press release, we can see that qui tam actions on false patent markings provide a public good, allowing citizens to enforce a law when the government fails to see an interest, or lacks funding to do so. This provision of the law helps to spur innovation as well by freeing up the "land grabs" patentees attempt to make with broad, ambiguous language in their patents.

The amendment only allows "competitors" to sue for false marking, when there may be no competition at all. Further, there may even be collusion by incumbents in the market to prevent newcomers from entering the market.

The most troubling news in this press release is as follows:

"The Senate has held no hearings or debates on the effects of the current false marking law or the proposed change."

So, the so-called "back-room deals" and obscure provisions of the healthcare reform bills circulating Congress by the Democrats are bad. But for the Senate to make such an important change to patent law with no hearings or debate is "OK"?

I'm very disappointed in Congress. (When am I not? Hopefully, today.)

I hope that Congress will strike any change to the qui tam provisions of the patent laws. They have a long history going all the way back to England and they perform an important function in our Intellectual Property laws. Anyone that enjoy the benefits of patents should also perform the duties associated with patents. That is, to take due diligence and care in marking products correctly so as not to stifle innovation in the marketplace, and to pay the fines for their mistakes.

I have urged my representatives in Congress to leave the provisions for qui tam actions in the patent laws alone and let the great citizens of this land police the false patent markings wherever they may find them, and let them be rewarded for their finds as the law permits.

I hope they're listening.
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