[EAS] Broken Patents

pjk pjk at design.eng.yale.edu
Fri Nov 12 19:33:49 EST 2004

Subject:   Broken Patents

(from INNOVATION, 6 October 2004)

      Harvard investment banking professor Josh Lerner and Brandeis 
economics professor Adam B. Jaffe say two patent-office developments
in the last quarter century have done disastrous damage to the
nation's traditions of innovation and profess: first, a decision in
the early 1980s to let a single federal appeals court hear patent
lawsuits (replacing 12 regional appellate courts) and then changing
the patent office's financing so the  agency could pay for itself
with user fees. In their new book, Lerner and Jaffe suggest that
under the new rules examiners had to perform quicker reviews,
resulting in a degradation in quality of patents issued and 
encouraging patent disputes: "The ability to litigate and expect to
get substantial award from litigation increased. So as a result
we've got somewhat of a vicious cycle. Once you get one firm in an
industry beginning a strategy of aggressive patent enforcement, it
creates an almost inevitable response -- an almost arms-race
dynamic -- where everyone else in the industry says, 'We better be
doing the same thing.'" Part of their proposed solution is to
reverse the trend toward jury trials for patent lawsuits: "Over the
last 30 to 40 years, there has been real replacing of judges by
juries. Patent disputes by and large tend to be highly technical 
disputes, and in many cases a lay person without much training in
the area is hardly an expert." The book is: "Innovation and Its
Discontents: How Our Broken Patent System is Endangering Innovation
and Progress, and What To Do  About It." (New York Times 27 Sep

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