How Judges, Bureaucrats and Lawyers Put Innovators at Risk
In "Patent Failure; How Judges, Bureaucrats, and Lawyers Put Innovators at Risk," (Princeton University Press, March 2008), James Bessen and Michael J. Meurer consider many reforms, most of which have also been advanced by other people. Of course, the devil is in the details. The authors readily admit that "In presenting this list of policy ideas, we admit that we really do not know what it will take to substantially improve patent notice. These policy reforms move us in the direction of an effective patent system, but we do not know whether they are sufficient to get us there:"
- Make patent claims transparent. We recommend changes in the way patent claims are defined, published, recorded in the application process, and used for subsequent determinations so that innovators have clear, accessible, and predictable information on patent boundaries. This includes strong limits on patent “continuations,” a procedure used to keep patent claims hidden from the public for extended periods. We also consider a new role for the Patent Office where, for a fee, innovators can obtain opinion letters on whether their technology infringes a patent.
- Make claims clear and unambiguous by enforcing strong limits against vague or overly abstract claims. This includes a robust “indefiniteness” standard that invalidates patent claims that can be plausibly interpreted in multiple, fundamentally different ways. Also,
we recommend reforms to limit overly abstract patents in software and other
technologies. At the very least, patent law should prevent software patents from claiming technologies far beyond what was actually disclosed as the invention. If this proves inadequate, then we suggest subject matter tests to limit the range of software inventions that can be patented, tests similar to those used during the 1970s and 1980s.
- Make patent search feasible by reducing the flood of patents. This includes a strong requirement that patents should not be granted on obvious inventions, coupled with substantially higher renewal fees. Ideally, patent renewal fees should be set by a quasiindependent agency and should be based on empirical economic research. These reforms will help stem the patent flood by screening-out unwarranted patents and discouraging renewal of low value patents. Reducing the number of such patents should help notice by reducing the cost of clearance search.
- Besides improving notice, we also favor reforms to mitigate the harm caused by poor notice. These include an exemption from penalties when the infringing technology was independently invented and changes in patent remedies that might discourage opportunistic lawsuits.