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Jessica Chesher

Managing Editor

Innovation eReview
Featured Debate: Too Many Patents?

Is it too easy to obtain a patent? Are too many being granted? 

When an esteemed member of the judiciary; Richard A. Posner publishes an article: Why There are Too Many Patents in America, (July 12 in the Atlantic Monthly) questioning whether the patent system is working, we can be forgiven some perplexity regarding the issue. One thing is for certain, the patent system is receiving a lot of criticism, and lack of confidence in the patent system is not good for investment in patent based technology.

The criticism stems from a number of frustrations: huge wait times – generally a minimum of three years and sometimes more. This is generally attributed to the failure to properly fund the USPTO. In addition the USPTO receives a seemingly ever increasing number of patent applications. New developments in software, IT and telecommunications products and pharmaceuticals have some wondering if certain categories of inventions should not be granted patents, or should be processed via another system. Expensive and protracted litigation regarding patents leads to uncertainty. In addition to all this, with the implementation of the new American Invents Act, there will be transitions, confusion and interpretation for the USPTO to sort. 

Is the patent system in trouble? Is the USPTO so inundated and underfunded that poor quality patents are issuing? The end of 2012 saw the Director of the USPTO and current and former Chief Judges of the US Court of Appeals for the Federal Circuit rising to the defense of the system. 

David Kappos addressed criticism of the patent system in an address in November at the Center for American Progress in the context of software patents. He argued that history teaches that with every new technology there is a process for working out the parties of interest in a certain technology. He argues the key is quality standards for evaluation of the patent applications to insure that the patents are good. 

Former Chief Judge of the US Court of Appeals for the Federal Circuit, Judge Michel is a passionate defender of the patent system. He believes a strong patent system is necessary and helpful to incentivize innovation and invention. At a symposium titled “Patents and the Public Good” sponsored by Licensing Executive Society in November, and in an in an-online debate with Judge Posner in December, he spoke of the “unprecedented success at building industry and commerce” in the United States as evidence, of the benefits of awarding and protecting patent rights. “Every major technological invention in the 20th century was developed in the United States,” he said. He is concerned that the America Invents Act did not implement the reforms necessary to provide the USPTO the support it needs, and warns that because Congress tends to be antagonistic to the patent system, and strong lobbies would like to see the patent system weakened, patent rights may be further limited. 

Current Chief Judge Randall R. Rader also defended the system noting that there are many developments which are made possible only because of the existence of a strong patent system. He spoke of the thousands of licenses and agreements facilitated by the monetization of ideas the patent system facilitates. 

Judges Michel and Posner agree that the goal should be to promote and incentivize innovation and invention. How to best do that will continue to be debated. Their exchange, sponsored by the Federalist Society, can be heard here. What do you think?

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