Patent Reform

[zerojunkie]

http://www.wired.com/news/technology/0,72743-0.html

By Luke O'Brien
17:00 PM Feb, 15, 2007

WASHINGTON -- The U.S. patent system is in bad shape and needs reform, said Rep. Howard Berman (D-California) and a bipartisan group of lawmakers in a House Judiciary subcommittee hearing Thursday.

Although Congress has long considered the patent system a shambles and has attempted to pass corrective legislation several times in the past, the issue is so sprawling and integral to the U.S. economy that progress has come slowly and in grudging increments. But lawmakers in the current Congress have vowed anew to clean up a system overwhelmed by frivolous patent applications and expensive lawsuits.

Witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as "out of whack." Instead of "the engine of innovation," the patent has become "the sand in the gears," he said, citing widespread fears of litigation.

BlackBerry users will remember the lawsuit last year that almost shut down their addictive handheld devices, an example Jaffe raised in the hearing. BlackBerry maker Research in Motion settled with patent holder NTP for $612.5 million.

Litigation and poor patent quality can have "chilling effects" on research in areas such as network technologies where open standards are critical, said Mark Myers, a former vice president at Xerox and one-time chairman of the National Academies committee on intellectual property rights. Myers also described the United States Patent and Trademark Office as being "crushed" by its workload.

"We had a great expansion of patenting in the technology period of the '90s," he said. "At the same time, we did not increase the number of patent examiners proportionate to the workload."

Every year, the patent office receives around 160,000 patent applications, far more than its staff can handle. The office issues approximately 100 patents every working hour, Myers said, meaning that patents with little merit or litigious intent often sneak through the cracks. How else to explain a patent for an idea as inane as "a method of swinging on a swing"?

Patents of poor quality also inspire patent speculators (commonly known as "patent trolls"), said Daniel Ravicher, the executive director of the Public Patent Foundation, a nonprofit legal group that campaigns for the public interest. Setting the patent bar low stymies innovation and leads to "thickets of patents that choke out first inventors," Ravicher said.

Several witnesses said the threshold for inventiveness had been eroded over the past two decades, in large part because of a legal change from 1982, when the process of appealing patent cases was altered to drive most appeals into a single court, the U.S. Court of Appeals for the Federal Circuit, or CAFC.

"The CAFC has interpreted patent law to make it easier to get patents, easier to enforce patents against others, easier to get large financial awards from such enforcement and harder for those accused of infringing patents to challenge the patents' validity," Jaffe said.

So how to fix the system?

Witnesses said one of the most important steps would be to raise the standards for an idea to be patentable. Congress should mandate a strong post-grant review procedure to cut down on expensive lawsuits and allow complainants to bring evidence to the patent office directly. The United States should also make efforts to harmonize its patent system with those in Europe and Japan, to increase common intellectual property that could benefit U.S. businesses.

Sounds good. Unfortunately for Berman and his colleagues, listening is the easy part.