Brad Feld

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Two Major Supreme Court Decisions on Patents

Jun 02, 2017
Category Government

In moments of political despair, Amy reminds me that we have three branches of government. Around issues that I care a lot about and have engaged in over the years, the Judicial Branch seems to be the most functional right now, at least from my perspective.

This was reinforced by two things this week. The first was a conversation Jason and I had with senior staffers of a non-Colorado senator. They wanted to meet with us, and the agenda was open-ended around issues that startups and investors were interested in, especially ones we have been visibly talking about such as patents, immigration, and net neutrality. Several times I asked a different version of “what can we do to engage constructively” with Congress and the answer was essentially “nothing right now.” While the conversation itself had some substance to it and I liked the people we spent time with, the message I took away was that Congress didn’t have the ability, based on the current political environment, to take any action on any of these issues.

That stood sharply against the backdrop of two decisions the Supreme Court made in the last few weeks on patents. While the first was more talked about than the second, they are both important.

The first was that the justices ruled 8-0 that patent suits can be filed only in courts located in the jurisdiction where the targeted company is incorporated. If you own real estate in Marshall, Texas, it’s time to harvest your investment. According to the article (and a Stanford Law School Journal study), “more than 40 percent of all patent lawsuits are filed in East Texas. Of those, 90 percent are brought by patent trolls.” I expect in the near term Delaware courts will be clogged with patent troll cases since so many tech companies and startups are incorporated in Delaware. Hopefully, the Delaware courts will take a much less “troll-friendly” approach to things.

The second was that the Supreme Court said companies give up their patent rights when they sell an item, in a ruling that puts new limits on businesses’ ability to prevent their products from being resold at a discount. While a little more subtle, it’s equally important since this was another classic move by a certain category of company to limit downstream competition. I love what Justice Roberts wrote.

“Extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain,” Roberts wrote.

While in my ideal world Congress would proactively work to establish contemporary intellectual property rights that include patents but also extend to copyright and trademark, I have no expectation that this will happen. Besides, the amount of money spent by lobbyists for companies promoting a position that supports their business model, rather than a macro-level view of the long-term dynamics, will mean, at least in the current environment, that a thoughtful, balanced approach is unlikely.

Fortunately, we’ve got the Judicial System.

“The millstones of Justice turn exceedingly slow, but grind exceedingly fine.” – John Bannister Gibson (1780-1853)

And, for now, even though the wheels of justice turn slowly, they are turning.