How Not to Invent a Patent Crisis

Intellectual Property and Patents

Article Snapshot


F. Scott Kieff and Henry Smith


Reacting to the Spending Spree: Policy Changes We Can Afford, Terry L. Anderson and Richard Sousa, eds, Hoover Institution Press, 2009


This chapter assesses recent changes to the patent system and proposes reforms.

Policy Relevance

Proposed changes to the patent system that give officials more discretion are likely to fail; a few simple changes will reform the system without causing uncertainty.

Main Points

  •  Three types of concerns about the patent system underlie most recent reform efforts, concerns about problems arising from:
    • Junk patents, too many weak patents flooding the patent system.
    • Patent thickets, too many patents that make it hard to negotiate deals.
    • Patent trolls, patent owners who use litigation to interfere with other businesses.

  • Recent reforms either make it harder to get a patent, or make it harder to enforce an existing patent.

  • Reforms like the Supreme Court’s decision in KSR v. Teleflex encourage the patent office and courts to be more flexible in deciding whether a patent should have been granted.
    • Flexibility invites lobbying of patent officials and increases their discretion, adding to uncertainty.
    • More reforms are being proposed, without time being taken to see the results of the KSR decision.
    • “Flexible” approaches to patent law were tried in the 1940s and 1970s, and failed.

  • Invention and innovation require many people to negotiate in order to cooperate; stable, enforceable patents create a platform on which to base negotiations. Trying to fine-tune patent law on an industry-by-industry or case-by-case basis creates uncertainty and undermines innovation.

  • These proposals would improve the patent system:
    • Remove courts’ assumption that a patent is valid unless clear and convincing evidence shows otherwise.
    • Use fee shifting to discourage weak lawsuits from being brought.
    • Limit injunctions when the party who infringed the patent acted in good faith.

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