When Rep. Lamar Smith introduced the Patent Reform Act of 2005 in June, he knew that for the legislation to pass, it would most likely have to be watered down. And he's prepared to make concessions as the House debates its merits. "Sometimes a half a loaf is better than no loaf, and certainly a few slices is better than a few crumbs," the Texas Republican says.
That optimism has helped Smith, 58, emerge as the flag bearer for patent reform. He's intent on stemming the growing volume of lawsuits, which he says current laws encourage. One area in which he'd like to see change is in the use of injunctive relief, where the courts can order a company to stop using a technology deemed to infringe on another party's patent. BlackBerry creator Research In Motion and eBay are locked in disputes where injunctions could block them from using technologies key to their businesses.
An injunction against eBay's fixed-price sales capability is on hold as the U.S. Supreme Court prepares to review the case. If the court rules the injunction isn't warranted, it could set a precedent making injunctive relief more difficult to obtain. That would nicely complement Smith's bill, which has made the congressman no friend of small inventors. Tom Woolston, managing director of MercExchange LLC, the company challenging eBay, is among those convinced that Smith's notion of reform benefits big, rich companies.
But Harvard Business School professor Josh Lerner credits Smith with building bipartisan momentum on a complex issue that raises the ire of many special interests. "You really need that strong, individual champion," Lerner says.
Smith is well aware that patent reform isn't popular with everyone. "Our goal is a piece of legislation that benefits everyone," he says, "and that's not an easy task." Speedier approvals that would give tech patents a longer useful life will help everyone, he says. And who knows, maybe Smith will even test out his creation. "I wish I'd come up with a successful patent on which I was getting royalties," he says. "I'm still thinking about it, and I may come up with something."
If some form of his bill is approved, Smith won't need to invent anything. He'll have made his mark.