Will Europe Follow Our Bad Example on Patents?

by on April 12, 2007 · 2 comments

Over at Ars, I cover the European Commission’s new report advocating the creation of a new set of patent courts to unify Europe’s patent system:

The report argues that European competitiveness is hampered by its limited use of patents compared with Japan and the United States. It notes that Americans and Japanese both file more patents per capita than due Europeans, and speculate that Europe’s unwieldy patent system is holding back innovation.

However, the report pays little attention to the possibility that too much patenting could be an even bigger impediment to economic growth. The report devotes only one short paragraph to patent thickets, patent trolls, and other problems created by low-quality patents. It doesn’t offer any concrete recommendations for ensuring that the European patent system avoids the problems now being encountered in the United States.

Nor does the report address the risk that creating a separate patent court will lead to a judicial system that is too sympathetic to expanding the scope of patents. Some observers argue that’s precisely what happened in the United States. They note that since Congress created the Federal Circuit in 1982 to hear patent appeals, the scope of patents has been greatly expanded. Software and business method patents have been legalized, and the bar for obviousness has been dramatically lowered. Some speculate that the large number of former patent lawyers among the judges of the Federal Circuit are one reason for this shift—lawyers who have devoted their lives to patent law will naturally be sympathetic to arguments for expanding the scope of the patent system.

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