By Tom Still
MADISON – While the Wisconsin Legislature appears deadlocked on everything from the state budget bill to a multi-state compact to protect the Great Lakes, the state’s congressional delegation just delivered a lesson on putting partisanship aside to solve a problem.
The issue at hand: How to rewrite the nation’s patent laws without harming the very entrepreneurs and inventors those laws were designed to protect.
The U.S. House of Representatives voted Sept. 7 to endorse some of the most significant changes in American patent law in more than 50 years. The 220 to 175 vote was hardly a landslide, and leaders in the Senate will be reluctant to bring the bill to a floor vote until at least 60 of 100 senators (a filibuster-proof margin) signal they will support it. However, the state’s delegation played a vital role in rewriting a bill that Wisconsin opponents once described as dangerous and now find largely acceptable.
U.S. Rep. Jim Sensenbrenner, the veteran Republican from Menomonee Falls, and U.S. Rep. Tammy Baldwin, the Democrat from Madison, normally would have trouble agreeing the sun rises in the east. But on this issue, these two lawmakers worked with other members of the House delegation to soften some of the most egregious aspects of the bill.
“It’s a better bill than what was introduced,” said Carl Gulbrandsen, managing director of the Wisconsin Alumni Research Foundation. “By agreeing to work together, the Wisconsin congressional delegation was at the (negotiating) table.”
The debate over reforming the nation’s patent laws – which are rooted in the Constitution – has created some strange alliances. Democrats and Republicans have been split within their own congressional caucuses, and different sectors of the nation’s tech-based economy have also disagreed. For example, the bill found support in the software industry, with its shorter product life cycles, while the biotechnology and pharmaceutical sectors were opposed. For some tech-based companies that do business in multiple countries, the status quo is troublesome. For others, it’s a safeguard.
The opponents were joined by organizations such as WARF, which handles patent filings and licensing for inventions that arise on the UW-Madison campus. A subsidiary of WARF, called WiSys, does the same for most other University of Wisconsin campuses. Since its creation in 1925, WARF has returned $940 million in license revenue to the UW-Madison, which has used the money to fund research and other campus activities.
Like those at many academic R&D organizations, managers at WARF worried that sweeping changes in U.S. patent law would discourage innovation – not only on campuses, but among entrepreneurs who lack the money and expertise to quickly file patents. The bill shifts from a first-to-invent system to a first-to-file approach, which matches the rest of the world but will alter behaviors here. One amendment worked by the Wisconsin congressional delegation would require an “inventor’s oath” to demonstrate it’s really the inventor who is filing, not someone else rushing to the patent office with a pilfered idea.
Changes pushed by Wisconsin’s congressional delegation would also give academic R&D organizations such as WARF the ability to file patent infringement lawsuits in a federal district court close to home. Other amendments would create filing “grace periods” for academic patents and delay some provisions until the effects on U.S. innovation are studied.
Gulbrandsen said provisions related to damages and review periods for patents after they are granted remain a problem from WARF’s perspective, but those issues may get more scrutiny in the Senate. Wisconsin Sens. Herb Kohl and Russ Feingold both sit on the Senate Judiciary Committee, the main stop for the bill.
The goal of Congress is to weed out poor-quality patents and make litigation less likely, without harming “the little guy” who drives innovation through patent-worthy ideas. The fight is far from over, and lawmakers should ensure unintended consequences are few. When it came time to pull together on this round, however, Wisconsin’s House delegation did so.
Still is president of the Wisconsin Technology Council. He is the former associate editor of the Wisconsin State Journal in Madison.