In a divisively partisan Washington, politicians and pundits lament the lack of bipartisanship, compromise and a willingness to put aside partisan and ideological interests in the name of the common good. It is true that major policy initiatives are often derailed by partisan or ideological differences, but before condemning the failure to compromise out of hand, it is necessary to determine whether the differences are petty or justifiable.
History tells us that major, or what Washington politicians like to call “comprehensive,” reform requires the development of a bipartisan consensus and compromise to win public as well as congressional and presidential support. Truly significant “comprehensive” legislation that is rammed through Congress without such support often creates more problems than it solves and gets its supporters into political trouble. The successful bipartisan civil rights bills of the 1960s and President Obama’s Affordable Care Act are examples of the two approaches.
There are a number of ways reforms attract bipartisan support. They can make so much sense that Republicans, Democrats, liberals and conservatives find themselves actually agreeing with one another on the merits. The president’s view of bipartisanship is a bit different. He believes his opponents should join him or face rhetorical beatings as obstructionists — a strategy that sometimes attracted weak-kneed types willing to surrender principle so they could look like the kinds of folks content to sit before the campfire with their opponents, holding hands and singing kumbaya.
Then there are bipartisan proposals forged by special interests willing to spend as much as they might have to get what they want. The “comprehensive” patent law reform proposals working their way through Congress might serve as poster children for this sort of bipartisanship. There are problems with our current patent laws that haven’t been updated in decades, and Congress is rightly focused on perhaps tweaking them to fix those problems and especially to make it more difficult for “trollers,” who scam the system by threatening businesses large and small with lawsuits claiming patent infringement unless they pay them to go away.
But some see an opportunity to turn the need for a limited “fix” into an opportunity to push through the sorts of “comprehensive” reforms that would increase their bottom lines. Chief among those trying to do just that is Google, which spent something approaching $17 million last year lobbying with “comprehensive” patent reform at the top of the company’s wish list. An investment of that size should be enough to get members to question how Google defines “comprehensive,” “reform” and “good public policy.”
In addition to spending millions of dollars on lobbying, Google executives contributed $800,000 to President Obama’s political campaign coffers, and the company’s executives are to be found everywhere within an administration solidly behind the sort of “reform” Google lusts after.
Republicans, meanwhile, see a problem that needs to be solved, a chance to attract some of the money now going to Mr. Obama and his friends and a way to share the thrill of a bipartisan moment. As a result, a bipartisan comprehensive patent reform proposal is working its way through Congress and could end up on Mr. Obama’s desk for all the wrong reasons.
“Comprehensive” proposals that would completely rewrite our laws are prone to producing potentially dangerous unforeseen consequences and should set off warning sirens whenever they appear. This is especially true when industry giants are spending millions of dollars to win their passage. Congress should address the problem that needs fixing while refraining from the temptation to rewrite patent laws that have sparked innovation and largely protected the property rights of our most creative citizens, no matter how much Google spends or how badly Republicans crave a bipartisan moment.
Former Ohio Secretary of State Ken Blackwell summed up the danger of compromising one’s principles to look accommodating in a letter to conservatives and lawmakers on this subject last month. “Rushing to pass bad legislation,” Blackwell wrote, “just so we can demonstrate a willingness to work with the White House is not the path to take.”
On the other hand, there are very real problems in this area that Congress ought to address. The problem is devising a reasonable approach to solving them without throwing out a system that has and continues to work pretty well in the name of reform. Fortunately, there are those in both parties taking a serious look at the problem with an eye to doing just this rather than either exaggerating or dismissing the concerns of innovators, small-business owners and consumers.
Democrats like Sen. Chris Coons of Delaware are hoping to avoid the pitfalls of comprehensive proposals that could play into the hands of big players out to gain competitive advantages over those without the resources or clout to game the system. He and others looking to improve a patent system that has served the nation well deserve our support as they tackle truly difficult problems. His proposed legislation may not be perfect, but at least he is on the right track.
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