Richard Lloyd

There’s no doubt that in the PR wars that have been fought over the US patent system throughout the last decade, there has only been one winner. The powerful constituency in big tech that has lobbied for far-reaching changes, which some observers claim have severely undermined patent rights, has held the upper hand. That’s in large part because those pushing for reform in Congress, the courts and the business community have invested large sums in spreading a narrative around the problems posed by “patent trolls” that has been used to justify the need for a re-engineering of the US system to make it less friendly to all rights owners.

However, if a recent Financial Times article is any guide, the tide might be turning. Headlined “Big tech versus big pharma: the battle over US patent protection”, the article goes through a series of complaints from patent owners, that includes the full list of Supreme Court cases familiar to all readers of this blog. Its hook is the danger of pharmaceutical companies declining to invest in new drugs if they are unable to effectively defend their IP; but the story makes clear that it is not just the large, brand name drug companies that are concerned – it cites similar feelings among semiconductor and electronics firms, universities and the venture capital community. “The large drug companies are only one voice among many that have begun to complain about how shifts in the US patent system over the past decade have weakened the ability of companies to protect their innovations,” writer Rana Foroohar states.

The only ones who aren’t complaining about what has happened, the article claims, are the giants of Silicon Valley, such as Google, Apple, Intel and Cisco. Of course, up until recently those companies were leading the calls for new legislation and court decisions that have, among other changes, introduced inter partes reviews, reformed venue laws, rewritten the rules around subject matter eligibility and increased the chances of fee shifting.

Compared to the many news stories and opinion pieces about a patent system that is supposedly out of control and not fit for purpose, there have been relatively few articles in mainstream media titles that have viewed the US patent market through a distinctly anti-big tech prism. One exception was an op-ed by New York Times columnist Joe Nocera, who wrote a particularly pointed piece entitled “The patent troll smokescreen”. This highlighted the wider damage that the “troll” narrative was doing to the patent system and introduced the term “efficient infringement” to the wider world.  

Foroohar herself wrote another piece in the FT last month, entitled “A better US patent system will spur innovation”, which looked at the dangers a weakened US regime posed for the future of R&D in the country. “Pushing back on patents has been great for Big Tech, which of course has its own IP to protect, but increasingly monetises data and IP created by others. But the US software supply chain, as well as life sciences, have been collateral damage,” Foroohar wrote. “Anecdotally many investors say they are considering moving money away from the US to Asia and Europe. That is worrisome, as these are exactly the kind of highly skilled jobs the US should be looking to keep.”

What those seeking large-scale patent reform realised a long time before the pro-patent lobby is that to create momentum for change you need an accessible story to tell. You need good guys and bad guys, and you have to avoid talking technicalities as much as possible. Only then do you have a chance of attracting anyone important’s attention.

To get a piece promoting your line in a newspaper like the FT or the New York Times takes a huge amount of effort. It requires you to identify possible writers, pitch them something that stands out among all the other pitches they get, put them in touch with senior people willing to provide engaging quotes and to be at the end of a telephone line when the journalist has a question or wants to understand a particular point better. It’s a time consuming exercise, it’s expensive and it takes important people away from their everyday work – but it’s the only way. Once you have the story - or, better still, a portfolio of them - you have something that judges and their clerks might notice as they drink their morning coffee, and that you can put in front of Senate and House staffers. That’s when you start to get traction.      

What the recent FT articles show – alongside the introduction of the STRONGER Patent Act in June – is that the pro-patent lobby might finally be getting its act together. In the past its approach has been piecemeal and comparatively underfunded; now that seems to be changing. As this blog has previously noted, there does seem to be a significant shift in the narrative around the US patent system. There are still calls from legislators to clamp down on the terrors of the “trolls” — a blog post from Senator Hatch being the most recent example — and that will presumably always play well with political donors in the tech industry; but the anti-patent lobby no longer has the clear run it once did.

As pharma companies and other patent owners start to flex their muscles more effectively, so the conversation is shifting to areas like reform of 101 (the part of the patent statute that governs patentable subject matter) and how IPRs might be altered in favour of patent owners. That suggests that those pushing hardest for stronger patent rights in the US are starting to have an effect.

Additional reporting by Joff Wild