Google’s monopoly ruling reveals a deeper threat to innovation

By RANDALL R. RADER
Guest Columnist

A recent federal court ruling found that Google violated antitrust laws to maintain an illegal search engine monopoly. While a landmark decision, it is just the tip of the iceberg, exposing a deeper, underlying issue plaguing America’s innovation ecosystem.

At the core lies a tactic known as “efficient infringement,” which is advocate-speak for intentional, premeditated infringement.

This occurs when large companies deliberately use patented technologies without permission, having determined that the potential profits outweigh the risk of being sued. It is a cold, economic calculation: if the cost of a potential lawsuit is less than the licensing fees or the competitive advantage gained, then infringing becomes the rational business choice. Large companies effectively sideline startups and smaller innovators, stealing their technology and diverting their resources from competition to litigation.

So, what is the solution?

Congress has two crucial pieces of legislation that could help level the playing field: the RESTORE Patent Rights Act and the PREVAIL Act.

The RESTORE Patent Rights Act strikes at the heart of the premeditated infringement problem by reviving a powerful legal remedy: injunctions.

Currently, even when infringement is proven, courts fail to issue these orders that halt infringers from using patented technologies, instead favoring monetary damages. This approach enables premeditated infringement by allowing deep-pocketed infringers to walk off with others’ innovations and dare innovators to sue if they want to do anything about it. The RESTORE Patent Rights Act would change this by restoring the presumption that a patent owner is entitled to an injunction when infringement is proven.

Injunctions enable small inventors to use their inventive products and compete in the market against much larger companies. This shift is vital for breaking up monopolies and paving the way for a more competitive and innovative ecosystem.

The PREVAIL Act, meanwhile, aims to reform the Patent Trial and Appeal Board, a body that was intended to provide a faster process for adjudicating patent validity but has instead become a tool for large companies to repeatedly challenge the patents of smaller rivals. By limiting duplicative proceedings and increasing transparency, the PREVAIL Act would help ensure that the patent review process is fair and efficient rather than a war of attrition against smaller inventors.

Together, these bills would advance a more just patent system, making it harder for large companies to game the system and easier for inventors to compete.

Critics who claim that stronger protections will stifle innovation fundamentally misrepresent the patent system. Patents do not limit ideas; they incentivize the creation and sharing of new ones. Without reliable protections, small companies struggle to realize their innovations’ full potential, ultimately resulting in fewer breakthroughs.

The Google antitrust ruling is a wake-up call – but it addresses a symptom, not the root cause.

To foster the next generation of groundbreaking companies, lawmakers must act decisively and ensure that today’s startups have a fair shot at turning their innovations into successful businesses – breaking the stranglehold of monopolies and reinvigorating the spirit of competition.

By passing the RESTORE Patent Rights Act and the PREVAIL Act, Congress can help ensure an innovation ecosystem that lives up to the promise of American ingenuity and safeguards U.S. technological leadership for years to come.

Randall R. Rader served on the U.S. Court of Appeals for the Federal Circuit from 1990 until his retirement in 2014, and as its chief judge from 2010 to 2014. He is currently a professor at the George Washington University Law School. This was originally published by The Well News.