Patently Obvious
By DOUG LICHTMAN
NYT
Los Angeles
ON Monday the Supreme Court will consider whether to fundamentally alter the way American patent law is litigated. Specifically, in the context of an otherwise unremarkable patent dispute, the Court has promised to decide the degree to which juries should be allowed to question whether a patent should have been issued at all.
It’s a critical issue: the current approach, under which juries are explicitly discouraged from questioning a patent’s validity, all too often means that dubious patents are nevertheless enforced. That inhibits innovation, the very thing that patent law is supposed to encourage.
A patent’s validity is first judged at the United States Patent and Trademark Office, where thousands of experts on everything from business practices to stereo equipment toil to evaluate every submitted application. It’s a herculean task: inventors have filed more than 450,000 applications every year since 2007; last year the number was close to 500,000. To accurately evaluate all of those purported inventions would cost tens of billions of dollars, multiples more than what the Patent Office receives in federal outlays or could plausibly raise on its own with application fees.
As a result, patent examiners give most applications only a quick look, spending on average 16 hours to 17 hours per application — nowhere near the time needed to assess whether an invention is truly new and not obvious. Worse, those hours are typically spread over two to three years, and they are interspersed with work on hundreds of other open files.
(More here.)
NYT
Los Angeles
ON Monday the Supreme Court will consider whether to fundamentally alter the way American patent law is litigated. Specifically, in the context of an otherwise unremarkable patent dispute, the Court has promised to decide the degree to which juries should be allowed to question whether a patent should have been issued at all.
It’s a critical issue: the current approach, under which juries are explicitly discouraged from questioning a patent’s validity, all too often means that dubious patents are nevertheless enforced. That inhibits innovation, the very thing that patent law is supposed to encourage.
A patent’s validity is first judged at the United States Patent and Trademark Office, where thousands of experts on everything from business practices to stereo equipment toil to evaluate every submitted application. It’s a herculean task: inventors have filed more than 450,000 applications every year since 2007; last year the number was close to 500,000. To accurately evaluate all of those purported inventions would cost tens of billions of dollars, multiples more than what the Patent Office receives in federal outlays or could plausibly raise on its own with application fees.
As a result, patent examiners give most applications only a quick look, spending on average 16 hours to 17 hours per application — nowhere near the time needed to assess whether an invention is truly new and not obvious. Worse, those hours are typically spread over two to three years, and they are interspersed with work on hundreds of other open files.
(More here.)
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