To some, the term “patent reform” evokes images of a freedom march, or an effort to cast sunshine into a den of corruption.
For me, the term evokes some classic Beatles lyrics:
You say you got a real solution – well, you know, we’d all love to see the plan…
“Patent reform” is clearly a Big Deal these days:
- The official White House press release for the America Invents Act features the word “reform” eight times. Obama has also called for a variety of further “reform” measures.
- The Leahy Patent Transparency and Improvements Act is only the latest of a continual train of competing “reform” bills that have shuffled around in various congressional committees.
- The Electronic Frontier Foundation generates a steady stream of proposals and amicus briefs with the stated intent of “patent reform,” as do a host of other organizations, such as the Free Software Foundation, American Innovators for Patent Reform, Patent Progress, and The Coalition of Patent Fairness.
- Superstar / celebrity district court judge Richard Posner broadcast a loud excoriation of the intellectual property system after throwing out a high-stakes patent suit on largely philosophical grounds.
- The USPTO’s continuing series of roundtable meetings seeking public involvement and commentary on various aspects of patent reform.
- Opinions in landmark patent cases, such as the CLS Bank v. Alice Corp. per curiam opinion by the Court of Appeals for the Federal Circuit and the Bilski v. Kappos concurring opinion by Supreme Court Justice Kennedy, advance strong views about the need for radical change of the patent system.
- Law academia has developed a veritable cottage industry of proposals for “patent reform.”
- Even National Public Radio produced a pair of This American Life segments dramatically entitled: When Patents Attack!
- Restricting use of the patent system by “non-practicing entities” (“NPEs”), also known as “patent trolls.”
- Reducing the prevalence of patent lawsuits.
- Making certain classes of inventions categorically unpatentable, such as business methods and software.
- Raising the requisite level of disclosure.
- Prohibiting certain types of patent claims, such as those that describe the invention in functional language.
- Imposing or raising a threshold of inventiveness, such that inventions deemed as having inadequate value (as determined by… um, someone) are issued as patents by the patent office – e.g., generally lowering the allowance rate of the patent office.
- Giving the public greater opportunities to challenge and invalidate patents.
- Promoting the accessibility and affordability of the patent system for small entities.
- Reducing delays in patent examination.
- Shifting patent law toward a “compulsory licensing” system, where patent infringers are not prohibited from using inventions, but are simply required to license the patent from the patentee (and compelling the patentee to offer such a license under fair market terms).
- Shortening the lifespan of patents, either generally or for certain classes of technology.
- Dismantling the patent examination system in favor of a patent registration system, or simply with no substitute at all.
Of course, “reform” is a popular term for addressing many important industries. Consider: “healthcare reform,” “banking reform,” “wall street reform,” “government spending reform,” “fiscal policy reform.” Each system reflects a similar pattern:
- The system is correctly portrayed as having specific, dramatic problems (uninsured Americans, the mortgage-backed securities meltdown, LIBOR and stock price manipulation, gigantic federal deficits, boom-and-bust business cycles).
- These specific problems are used to portray the entire system as dysfunctional, corrupt, and near collapse.
- Organizations propose “reform” as a set of sweeping changes, intended to alleviate those problems and cleanse the system of bad actors.
- The reform becomes a cause celebre, based primarily on passion, emotion, and philosophical heuristics, but without an understanding of the history and mechanics of the system.
- Public opinion is eventually swayed in a particular direction. Reform measures are implemented that substantially alter the system in certain ways. The industry pats itself on the back, and the public loses interest and moves on to the next target system in need of “reform.”
The reality is that problems arising within complex systems are not typically amenable to simple solutions. Simple solutions may radically disrupt the careful balance of interests, and may create other, larger problems. Simple solutions may be premised on a misconception of the problem, and may not actually address it – may, in fact, exacerbate it. Simple solutions may force a regression of the system to an earlier form that was tried and abandoned due to intractable problems. Indeed, the constraints of the system that the “reform” measures dismantled might have been originally implemented to address such intractable problems.
Most advocates of patent “reform” do not acknowledge this delicate balance of the patent system – because they aren’t actually interested in its general health or longevity. Rather, most advocates of patent “reform” primarily seek to tip the balance of the system in favor of their own interests. They focus solely on the effect of the patent system on their objectives, and opportunities to alter the patent system to reduce negative effects and promote positive effects. Publicly, they promote their ideas as for the benefit of everyone… hence, patent “reform.”
However, because patent law is inherently competitive, most changes that tilt the balance in favor of some parties also tilt the balance away from other parties:
- Some want the patent system to provide the broadest possible protection for their business models. Others want to eradicate the patent system because it conflicts with their business model or personal philosophy.
- Some want patent examination to be cursory and routine. Others want patent examination to be exhaustive and onerous, so that only the “best” patents emerge.
- Some want a variety of ways for third parties to challenge patents and patent applications. Others want to prevent patents from being under constant, repeated attack.
- Some want patent litigation to be convenient and affordable. Others want to make patent litigation difficult and costly.
- Some want the patent process to be accessible for individual inventors, small businesses, and academic institutions. Others want to restrict patenting to well-funded businesses in order to reduce patent trolling.
- Some want to extend the patent term in order to offset lengthy R&D and regulatory approval processes of patented products. Others want to shorten the patent term in order to prevent fast-moving technologies from being saddled by protracted patents on “old” ideas.
Imagine a huge sailboat, crewed by a dozen sailors who are squabbling over its heading. They fight for control of the wheel and the rudder. They pull randomly on ropes, occasionally pulling on the same rope in opposite directions. Occasionally, they push an opposing sailor overboard. That’s “patent reform” in a nutshell: an ugly skirmish to seize control of a vitally important business process.
In closing: I do not mean to suggest that the patent system is not problematic, or that it cannot be changed (a future post will address these issues). The point of this post is simply that public support of “patent reform” is unjustifiably quick and alarmingly uncritical – that casual participants in this discussion are easily misled by special-interest proposals repackaged as “reform” initiatives.