SUCCESS Act Is A Good Start—But Could Be Improved

Last week, Rep. Comstock (R-VA), along with 7 other cosponsors, introduced H.R. 6390, the “Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018” (SUCCESS) Act.  The Act recognizes the gap in innovation activity faced by women and under-represented minorities, and requires the Small Business Administration and the PTO to study the reasons behind this gap.

While this is a good start, there is room for improvement in the bill.

The Bill Assumes That Applying Is Enough

The bill asks the SBA, in consultation with the PTO, to study how to “increase the number of women, socially disadvantaged individuals, and economically disadvantaged individuals who apply for and obtain patents.”

But, as earlier studies have shown, this problem isn’t just about increasing the number of patent applications from under-represented groups.  

Part of the problem is that there may be a structural bias that makes patent applications from women1 less likely to be granted.  In addition to examining how to increase the number of patent applications, the SUCCESS Act could explicitly require the PTO to study bias against granting patents to women and other under-represented classes, analyze its scope and severity, and report on efforts to eliminate the examinational bias issue.

Two Parts To Improving Innovation

The bill makes a few explicit findings.  The problem is that all of them effectively assume that more patents means more innovation; in reality, while patents can promote innovation, they can also prevent it.  While some small businesses “depend on patent protections to commercialize new technologies,” as stated in the findings, others have the opposite experience. As one startup investor put it, “[w]hen companies spend money protecting their intellectual property position, they are not expanding; and when companies spend time thinking about patent demands, they are not inventing.”

The bill only addresses increasing the number of patents applied for and obtained.  It ignores the other half of the issue—ensuring that small businesses can protect themselves from overly broad demands and assertions, in addition to the separate problem of bad faith demand letter campaigns.  These kinds of patent threats, even if they never lead to a lawsuit, can still have a significant impact on a small business.  And an innovative small business is more likely to see the threat of patent lawsuits from others as a negative than that business is to see the their own patents as a positive.

To truly improve the innovation created by under-represented classes, the SUCCESS Act needs to look at both halves of the problem—improving the ability of under-represented classes to obtain patents, and improving the ability of their innovative businesses to protect themselves from assertions.

  1. It is likely the case that this applies to other under-represented classes, but the study showing structural bias only looks at the effect of gender.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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