Dan L. Burk & Mark A. Lemley: “The Patent Crisis and How Courts Can Solve It”

The authors argue that the current U.S. Patent system is in crisis because it attempts to apply a more or less unified system to a range of industries with completely different needs. Perhaps most strikingly, the pharmaceutical industry relies heavily on patents to spur innovation and wants to strengthen patent protections, while the information technology industry is largely opposed to the strong patent system, concerned that it hampers innovation (through patent thickets, generating business uncertainty, etc) more than it helps it. Most companies in this industry use their patents only defensively, to fend off possible litigation. This radical split in the needs of these two industries was made obvious in recent (2005-2009) Congressional hearings on patent reform, in which the two sides were diametrically opposed in their recommendations, grinding reform to a halt. The current system, then, is hindering innovation across the board, though more in some industries than others.

The solution, according to the authors, is a modular patent system that tailors patent rules on a case-by-case basis, with general guidelines for different industries, enacted by the courts. The authors believe that this is the best way to facilitate innovation across the board. They also argue that this is merely an extension of what the courts are already beginning to do in a very conservative way (that is, treating different industries differently). Their argument, then, is that the courts should implement this more openly and systematically, as well as utilizing powers they already possess yet don’t implement. Congress should facilitate this process by giving the courts more authority, and resist the urge for more blanket legislation, which could not possibly be fine-tuned enough to meet such diverse needs, and which in any case would be rendered inefficient by the influence of lobbyists. The authors believe not only that this would spur innovation, but that the patent system, if it continues on its current course, is headed for a full scale breakdown.


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