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Patent debates give impetus for academic study

Posted: 18 Mar 2014  Print Version  Bookmark and Share

Keywords:patent  trolls 

Whether the US patent system helps or hinders innovations is an issue that has brought together some of US's top intellectual property scholars at a symposium held in Stanford's Hoover Institution, which is expected to generate a series of events and studies over the next five years.

"There are many strong positions but a weakness of empirical evidence," said Stephan Haber, a Hoover Institution fellow who kicked off the event. "The goal is to bring evidence and reason to bear, regardless of which way it points us. We are in the business of advocating for the truth."

On one side, big product companies often argue they are being hit by a rising tide of often spurious infringement suits from so-called "trolls" who do nothing but buy and assert patents. On the other side, start-ups and individual inventors claim such trolls—also known as non-practicing entities—serve important roles such as helping them make money on their work. Parties on both sides sometimes argue the patent system is flooded with applications and is not able to keep up with the pace of technology.

"We really don't have enough evidence to support the idea there's a fundamental problem with the US patent system," said B. Zorina Khan, a leading historian of the patent system who presented the first paper at the Hoover event.

Khan criticised President Barack Obama's call for patent reform in his last State of the Union speech. "We do not have enough information about the costs, benefits, and alternatives to the patent system to advocate for or against reform," said Khan, a professor of economics at Bowdoin College.

She and others noted that about 90 per cent of patent suits are settled out of court, and there is little data on terms of those settlements.

Khan cited many examples of complaints of the rising number of patents, suits, and trolls during the Industrial Revolution. "We need to get away from a fear of markets, intermediaries, and secondary markets—we should celebrate them [because] they play a role in economic growth...

"I agree there's been an increase in [patent suits] in the past 10 years, but compared to earlier rises it doesn't seem that explosive to me," said Khan. "The weight of litigation we see today is high, but I dispute the idea these patent cases are egregious."

She showed reports dating back to the beginning of the US patent system in the 1850s. They complained of "patent sharks" and speculators, high litigation costs, and a slow, swamped patent office issuing too many silly patents. One article warned people not to buy Model T automobiles for fear of being drawn into patent suits.

"Why are we surprised [in large, high-profile patent suits that] occur in wireless technology today?" she asked. "Forget about attaining perfection—no institution is exempt from costs and inefficiencies—but the patent system has worked well for more than 200 years."


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