Gene Quinn Presented with Friend of American Invention Award
All photos provided by the Eagle Forum.
On Thursday, May 23, Gene and I attended the Eagle Forum Annual Briefing and Dinner, an event hosted by conservative public policy and grassroots organization Eagle Forum Education & Legal Defense Fund. I was so proud of my husband as he, along with Representative Kevin Kiley (R-CA), was honored to be presented with the Phyllis Schlafly Friend of American Invention Award. In his remarks presenting the award, Eagle Forum President Ed Martin said:
Past recipients of this award include Former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, Hon. Paul Michel, Hon. Kathleen O’Malley, Senators Chris Coons (D-DE) and Thom Tillis (R-NC), and Congressman Thomas Massie (R-KY), among others.
As the keynote speaker for the event, which was titled “Fork in the Road, Or Collision Course: Innovation Vs. Government Constraint,” Gene delivered a very passionate speech in which he implored those attending to “build coalitions” and “look for opportunities to agree.” Below are his prepared remarks, as delivered:
“It is a real honor to be here. I’ll be brief but there are a few things I want to say. I had the ability to listen to most of the panel earlier today where my good friend Scott Kieff said that we need to be subtle, and we need to build coalitions in a non-threatening way, and I agree with him. There’s no doubt you can catch more flies with honey than you can with vinegar, and we must be diligent, look for opportunities to agree and take whatever win we can get because they’re too few and far between. Over time we have been our worst enemy by not taking the wins that we can get. We need to fight back and be courteous, but not today!
While I agree with all of what Scott said earlier, and we absolutely, positively are going to get more progress with an open hand than a closed fist, my role for this segment is as the canary in the coal mine. So, it’s not going to be warm fuzzy roses because it’s not warm fuzzy roses for inventors right now.
When I saw the title of the program, “Fork in the Road, or Collision Course”, the word “or” stood out. What if it’s really a fork in the road AND a collision course? Because that’s where I think we’re at. That’s where I think we’re headed. We all know the story about the demise of the patent system and if only that story were greatly exaggerated. But it’s not. It exists. It’s real.
Starting with eBay, patents have been turned into a compulsory licensing system. Think about it. You get a grant; an exclusive right from the federal government, which you enjoy as a patent owner right up until you are a victorious plaintiff. Right up until you demonstrate that the other side has taken it from you, and you have survived all validity challenges, at which point in time you no longer seem to have a right to exclude. You’re better to be a loser because at least you have the illusion that the patent grant to you says you have the right to exclude. When, suddenly, the illusion is burst like a bubble you can’t get a permanent injunction. You can’t even get an order that says exactly what the patent says itself. How wrong is that?
Then, after eBay, we go through a period of time where we enact the [America Invents Act] AIA, which brings about the [Patent Trial and Appeal Board] PTAB. And even if the PTAB is better than it once was, it’s still not good for patent owners. And simultaneously to the AIA we are dealing with the Supreme Court bringing us the quartet of patent eligibility cases that took out behind the woodshed and shot, a third of the biotech industry and much of the computer software industry including artificial intelligence. Which, by the way, is the future if you haven’t heard. It’s very hard to get these kinds of patents as you all well know.
Now, I also heard Jim Edwards this afternoon say the Oil States ruling in the wake of all of this was a misruling, and I have to disagree with Jim. It’s not a misruling. It’s a stupid ruling, but is it really a misruling? We’re in DC now and you all know what a political gaff is, right? It’s that moment in time when you actually speak the truth and what the Supreme Court did in Oil States is they acknowledged what they had done to the patent system. They acknowledged what Congress had done to the patent system. They turned the patent right from a property right into a government franchise. All they did was recognize how federal courts treat patents and view innovators. It was the truth!
The Constitution be damned, which says otherwise. The statute be damned, which specifically says a patent is a property right. But it’s not. And all the Supreme Court did was just acknowledge reality in a way that they probably, in retrospect, wish they had kept it secret, so that way, at least those people who aren’t well acquainted with the issue like we are, wouldn’t know.
So, we had eBay, we had AIA, we had the patent eligibility rulings and jump forward to now where under the Biden administration we have another war on patents. And this is a full frontal assault on all levels. It’s hard to know what is going on, but is this payback to donors? It is getting to the end of the term and does the Administration just have to pay back the donors? Or, what it feels like to me, is we have the patent office coming out with stupid ideas, we have NIST coming out with even dumber ideas and now just yesterday NIH comes out with something that nobody seems to understand. And that’s not good for patent owners.
Alexander the Great won his battles by dividing and conquering and that feels like what’s going on here. When we would have natural allies on all these issues, they’re in a different agency fighting the agency that matters most to them and all the allies they can normally rely on are similarly situated. They’re dividing us and they’re conquering and now the latest this week was with drug pricing and Senator Tillis finally, again, said the truth. He said this is the same hearing he attended ten years ago when he was first elected to the Senate and if we’re going to continue to blame patents he looks forward, he said, in his words, to the same hearing next year with no progress because, guess what, patents aren’t why drugs cost a lot of money.
The FDA—and God bless them I don’t want unsafe drugs— but that’s not a free process. It takes ten plus years to go through the FDA process, it costs lots of money and requires lots of R&D. That’s what causes drug prices to be so high. Not to mention the fact that in most other countries, they just take the rights or pay very little because of price controls. So we, in the U.S., are paying for the prescription drug use of the world.
Why does the patent community draw the short straw? Because it fits on a bumper sticker. “Patents Kill!” That’s the only reason and if it didn’t fit on a bumper sticker they’d be going after somebody else in some other way to blame some other boogeyman rather than try and deal with the serious problem. None of us want to pay high prices, but patents are not to blame. Grow up for God’s sake, Biden administration. Look at the real problem and fix it for the American people and if you don’t want to do it then get the hell out of the way!
And now for reasons I can’t begin to tell you, the most pro patent, pro innovation judge on the Federal Circuit has been sidelined with bogus claims that she has suffered some mental decline. I can tell you with 100% certainty that is not true! it’s just not true! We had judge Newman at an event we did last week, we put it up on YouTube so you can all watch it. You can also watch that many hours of programs that she’s been a part of over the last year or two. Read her decisions. And by the way, the Supreme Court just overruled the Federal Circuit, en banc, and adopted her dissent. Does this sound like somebody who’s lost it mentally? No! So why is she being sidelined? I don’t know but when you look at the greater arc of what’s happening, I have to wonder.
Innovators are struggling, contingency representation is waning, which is all most inventors can hope for, litigation financing is going to other places, because patents aren’t worth anything. It’s the sensible decision but it’s going to make it all the more difficult for the startup that is not funded or is underfunded, which is every startup, to fight the battle.
Massimo laid their technology out for Apple, and Apple stole their trade secrets and infringed their patents. Massimo won at the ITC but then the Federal Circuit says decided to stay the order “until we figure it.” If a publicly traded company, like Massimo can’t win justice against Apple, what hope does anyone else have if they’re getting the runaround?
This is the “hell no” lobby. In at least one case Apple is on record at the ITC that saying they will not license until the Supreme Court orders them to do so. If there is ever going to be an unwilling licensee, it has to be somebody that says you can’t offer me a price low enough for me to take it. So, we are at a fork in the road and the path we take is either going to lead us back to sanity or it’s going to take us clear off a cliff. I hope we don’t go over that cliff because we need innovators, we need innovations; it’s just the American way!”
