Patent policy is increasingly failing in its constitutionally enumerated purpose of “Promoting the progress of the sciences and useful arts” as a result of patent trolling and an epidemic of granting low-quality patents. Patent trolling, created and exacerbated by modern patent policy, is increasingly stifling competition, stopping legitimate innovations created independently, and raising barriers to entry for new market entrants, rather than acting as an inducement for the constitutionally enumerated purpose of “Promoting the progress of the sciences and useful arts.”
In this report, we present a number of suggestions for practical reform to patent policy, consistent with the original public meaning of the Patent Clause, which will foster more innovation, entrepreneurship, and economic growth. Patents are one of the primary ways the federal government regulates innovation and technology, and today it more closely resembles cronyism rather than sensible policy. When government and big business team up they often rig the game to keep out the competition, and the case is no different with modern patent regulation. More than nearly any other instrument of government policy, getting patent policy right is critical to getting robust economic growth.
A patent is one of the strongest tools that government can provide in a free society, a legal monopoly to a person or business to restrict the liberty of other persons. Granting individuals or corporations the power to restrict others’ liberty and thereby reduce competition in the marketplace must be done with strict scrutiny to ensure the regulation is effective and narrowly tailored; today it is not, as there has been almost no scrutiny by policy-makers on when patents should be granted. It is well past time for Congress to fix the patent system, which will grow the economy by opening the floodgates to more competition, risk-taking, and innovation.