NCPA - National Center for Policy Analysis

PATENTLY OUT OF DATE

May 4, 2007

The U.S. economy has thrived on technological innovation. Yet the federal government's conduit for invention -- the U.S. Patent and Trademark Office -- has not grown with the rapidly changing times, says the Los Angeles Times.

Consider the current state:

  • Overwhelmed by applications, the office has granted too many weak or bogus patents.
  • Investors have obtained patents not to develop products but to slap a duty on those who do.
  • Attempts by Congress to reform the system have been derailed, leaving change to come piecemeal through the courts.

But rather than letting the courts rewrite the patent system one element at a time, Congress should overhaul it.  They might be on the verge of doing just that, says the Times:

  • Identical bills were introduced in both houses of Congress last month, aiming to block undeserving applications, reverse bad decisions and limit the claims exerted on minor technologies.
  • Though there is widespread support for some of the bill's improvements, opposition is coming from drug manufacturers, universities and other research-reliant entities that want to maximize payoffs on the fruits of their labors.

At issue are provisions that would enable challenges to patents years after they are granted and would scale back penalties for infringers.  Opponents say this would drive away investors, particularly in such high-risk, high-reward fields as pharmaceuticals and biotechnology.

Unfortunately, the bill doesn't address some of the patent system's key weaknesses, including application backlogs and insufficient barriers to patents for obvious inventions, says the Times.  Nor does it address the gradual creep of patent protection into the realm of ideas, as seen in many software and business models.  But it would be a good start in pushing the system toward better patents and less abuse.

Source: Editorial, "Patently out of date," Los Angeles Times, May 3, 2007.

 

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