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Bar News - February 18, 2015

Morning Mail: What’s Hot Is Not

As co-founder of Gallagher Callahan and Gartrell and a 50-year member of the NH bar, I was heartened to see this year’s new lawyers enjoying their first “Bench and Bar Meet and Greet” in last month’s issue of Bar News. I was saddened, however, to find a trend article titled “What’s Hot” infused with misleading PR propaganda asserting that congressional passage of patent litigation reform will lead to more IP trial activity.

In fact the opposite is true. Rather than becoming “Red Hot,” civil IP enforcement will be permanently iced for all but well-resourced incumbents (and trolls) if pending cynically-entitled congressional “patent reform” is enacted. Its high-cost, high-risk barriers to infringement suits, purportedly designed to eliminate infringement recourse for so-called “patent trolls,” will in fact apply its draconian costs to all patent enforcement litigation. Future enforcement activity will thus be tightly limited to its patent reform’s proponents; the well-resourced IT incumbents whose in-house counsel and established DC law firms will use this year’s “Innovation Act” to choke-off constitutionally-created patent ownership rights, protecting incumbents, not intellectual property.

Lesser-resourced patent holders will be unable to afford patent protection. Anyone believing statistically insignificant troll activity is what motivates the massive sums invested in congressional patent reform is either on proponent payrolls or is simply naive. For the past eight years, I have advocated in the DC patent reform arena for universities, small business and independent inventors whose patent-dependent interests are existentially threatened by proposed litigation reform that has little to do with trolls.

But you needn’t take my word on this. Listen to New Hampshire’s own Dean Kamen and former 1st Cir. Chief Judge Paul Michel in the short film documentary linked at Resource-rich IT incumbents, whose market-driven business models trigger persistent infringement, created patent reform’s “dog whistle” name to appeal to tort reformers. Silicon Valley political money does the rest. Google’s own $17 million lobbyist expenditures topped the charts again in 2014.

New bar entrants contemplating IP practice in the “small and mid-sized firms” expressly addressed by the “2015 What’s Hot” report would do well to ignore its misleading predictions about the dangerous impact of this year’s patent reform. Indeed they should warn their congressional delegations how damaging it will be is for NH’s early-stage innovation, its university technology transfer, its independent inventors and its IP bar.

Chris Gallagher
Of counsel, Gallagher Callahan and Gartrell, Concord, NH
Senior Policy Director, New Venture Advisors, Manchester, NH

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