Patent Reform Lite

by on March 26, 2008 · 4 comments

Over at Ars Technica, I take an in-depth look at the Patent Reform Act now being debated in the Senate and conclude that it won’t come close to fixing the damage patents do to the IT industry:

To help us understand the implications of the Patent Reform Act, Ars talked to James Bessen, co-author of a recent book on the patent system. Bessen told Ars that the most important changes currently under consideration on the Hill are the post-grant review process, the apportionment of damages, and willful infringement. But he argued that none of these changes will address the serious flaws that plague the patent system. Rather, their most important effect will be the signal it sends that the IT industry is finally taking patent issues seriously and organizing to tackle the problem in Congress. He predicted that Congress will need to revisit the issue in the coming years as patent problems continue to mount.

Bessen had three major suggestions to offer to Congress once it gets serious about fundamental reform. First, there needs to be much stronger limits on patenting of abstract ideas, including software and business methods. Bessen argued that narrowly construing patent scopes will significantly improve the situation by preventing patent holders from using a single, broad patent to harass entire sectors of the technology industry.

Second, Bessen said that dramatically increasing maintenance fees would give patent holders a strong incentive to let unimportant patents lapse. That would reduce the total number of patents in effect and make it easier for potential innovators to review the remaining patents for possible infringement.

Finally, Bessen told Ars that the law needs to have protections for inadvertent infringers. Under current law, in most cases there are no legal protections available to a firm that independently develops a technology that is covered by an existing patent. An independent invention defense to patent infringement would be the strongest possible reform in this direction. A less ambitious approach would be to reduce damages in cases where independent invention can be demonstrated.

Needless to say, none of these more serious reforms have any serious chance of passage in Congress. In the short term, our best hope for reform is probably that the Supreme Court will continue taking cases and undoing some of the damage the Federal Circuit has done over the last couple of decades.

  • http://www.techliberation.com/contributors/ryan_radia.php Ryan Radia

    This is a very good analysis of the patent bill. It’s still probably a baby step in right direction, don’t you think? Making it easier to challenge patents seems like a good idea, and so does the apportionment of damages and elimination of venue-shopping.

    The hardest question to me is whether we ought to switch to a first-to-file system. This article about Canada’s experience with patents argues that many of the theoretical problems with first to file do not often manifest in practice.

  • http://www.techliberation.com/ Tim Lee

    Ryan: yes I think it’s a small step in the right direction, but only in the sense that the magnitude of the damages being done will be somewhat diminished. Being able to challenge patents doesn’t get you very far as long as the rules about what can be patented and how broad the patents can be are screwed up.

  • http://www.techliberation.com/contributors/ryan_radia.php Ryan Radia

    This is a very good analysis of the patent bill. It’s still probably a baby step in right direction, don’t you think? Making it easier to challenge patents seems like a good idea, and so does the apportionment of damages and elimination of venue-shopping.

    The hardest question to me is whether we ought to switch to a first-to-file system. This article about Canada’s experience with patents argues that many of the theoretical problems with first to file do not often manifest in practice.

  • http://www.techliberation.com/ Tim Lee

    Ryan: yes I think it’s a small step in the right direction, but only in the sense that the magnitude of the damages being done will be somewhat diminished. Being able to challenge patents doesn’t get you very far as long as the rules about what can be patented and how broad the patents can be are screwed up.

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