Most Washington lawmakers don't understand how hard it is to be a farmer. As Kansas's own Dwight D. Eisenhower once put it, "Farming looks mighty easy when your plow is a pencil, and you're a thousand miles from the corn field."
Too many policymakers continue to think that our food supply chain begins in aisle 1 of their supermarket and ends at their kitchen table. They don't consider the obstacles that must be overcome so that those who work the land can keep our shelves stocked, while also providing for their own families.
The agriculture sector has evolved over the years thanks to incredible advances in technology. With this progress, however, the range of problems confronting farmers has multiplied. Farmers are now subjected to threats that originate thousands of miles from their fields. Among the worst are scurrilous patent infringement lawsuits aimed at individual farmers, agriculture industry manufacturers, and the companies and startups developing technologies that will drive the next generation of farming equipment.
Gone are the days when most farmers can succeed with a piece of land, some basic tools and machinery, and a lot of sweat. Advanced technologies are now often a prerequisite for farmers to produce high enough yields just to keep their heads above water. For example, the Economic Research Service at the U.S. Department of Agriculture recently found that by 2016, 52% of U.S. corn acres used yield monitors, 31% used yield maps, and 39% used self-propelled machinery with guidance systems - all rates that have likely increased in the years since.
As technological advances have made their way to the farm, unwelcome visitors - patent trolls - have followed them. Patent trolls are just as ugly as their name suggests. They are shell companies that acquire low-quality patents to extort businesses, across industries, with meritless litigation. They never intend to develop new products or build anything themselves. Their only end game is to use broad, nonspecific patents to make money by intimidating their victims into settlements or rolling the dice on a jury verdict. Patent trolling is big business, but a farmer who has harvested one square foot of wheat has done more honest work and contributed more to the greater good than all patent trolls combined.
No business is safe from patent trolls. Whether you are the owner of an organic farm sued for selling your products online or an agriculture and farm equipment manufacturer sued over a vague patent called an Electronic Proposal Preparation System, you could find a demand letter in your mailbox without warning.
Patent trolls also prey on manufacturers of advanced technologies - like semiconductors and 5G - that are necessary for continued innovation. While the shortage of technologies like semiconductors have been more highly publicized related to rising costs and limited supply in the auto industry, the same strains are being felt with tractors and other farm machinery -meaning farmers are winding up as collateral damage.
The payouts that patent trolls demand, ranging anywhere from tens of thousands to billions of dollars, divert those resources from productive use. Research has shown that when a company settles with a patent troll or loses to them in court, they are forced to reduce investments in research and development by more than $150 million in the years that follow. By standing in the way of innovation and draining resources that could be put toward increased development and production of cutting-edge equipment, patent trolls contribute to cost increases and shortages for critical agricultural machinery.
Purdue University's most recent Ag Economy Barometer showed that the cost of new equipment is top of mind for producers. The August 2022 survey found that "producers still view this as a relatively poor time to make large farm machinery and building investments." Among those who say that now is a bad time to make large investments, almost half cite increasing prices for farm machinery and new construction as the primary reason. While patent trolls are not solely responsible, they are no doubt part of this problem.
When it comes to patent trolls, farmers are reaping the bad seeds that Washington bureaucrats have sown. In 2011, I voted for, and Congress passed, the America Invents Act (AIA). The AIA created a patent review board of judges at the U.S. Patent and Trademark Office (USPTO) to help weed out invalid patents so that they couldn't be weaponized by trolls. Unfortunately, previous USPTO leadership unilaterally changed the rules of the game and gave patent trolls the upper hand by decreeing that patents could avoid expert review at the USPTO so long as they were being actively used to sue others, thereby accomplishing exactly the opposite of what Congress intended when we passed the AIA. Only in Washington, D.C. could that happen. That's why the current USPTO director, Kathi Vidal, must restore review to work as Congress intended when we passed the AIA. Doing so will rebalance our patent system, discourage abusive patent litigation, and give farmers a much-needed hand-up.
Patent trolls will affect farmers for years to come. It is past time for our lawmakers to pick up their plows (pencils) and solve the problem.
Pat Roberts served as United States Senator from Kansas from 1997 to 2021. While in the Senate, he was the Chairman of the Senate Committee on Agriculture, Nutrition & Forestry.For more ag news and opinions, visit www.Agri-Pulse.com.