House Approves Bad Plan For Special Patent Judges

Predictions

from the unintended-consequences dept

Last year, we pointed out why a proposed bill to spend government money better educating judges on patent issues may sound good upfront, but would likely have very bad unintended consequences. Obviously, there are a lot of problems with the patent system — and often it does seem to have something to do with judges who don’t understand the intricacies of what’s going on. However, we’ve been through this before. In 1982 there was a lot of concern about patent litigation and jurisdiction shopping, as lawyers would rush to file lawsuits in specific regions where they were more likely to get favorable rulings. To deal with that, Congress created the Court of Appeals for the Federal Circuit (CAFC) which handles all patent-related appeals. Seems like a good idea, right? Except that by establishing such a specialized court, it didn’t take long for the court to be dominated by former patent attorneys who view the patent system in a very different way than its originally intended purpose. They tend to prefer a much broader scope of patents — and, indeed, CAFC helped make it okay for business models and software to be patented. They greatly expanded what could be patented, while also making the risks of violating a patent much greater. That, alone, is what has helped overwhelm the patent office with tons of patent applications.

Unfortunately, it looks like the House has now passed the bill allowing for this education regime which could create a very similar situation at the lower court levels. Judges will be “trained” on patent issues — but it isn’t explained what that training will include. It’s likely, though, that it will come with that same bias towards more patents, rather than promoting innovation. The bill also pushes for “specially appointed clerks with patent expertise,” which again probably means things like former patent examiners. There’s nothing to counterbalance the one-sided education that these judges are likely to receive — and since the bill also would let other judges hand off patent lawsuits to these “specially trained” judges, the end result may be a lot worse, rather than better. It certainly sounds like a good idea to better educate judges on patent issues — but it’s not hard to see that the education would be very one-sided, and the system would tilt even further in a dangerous, anti-innovation direction.

Part of the problem in this debate is that almost everyone looks to legal experts in this debate, rather than economic experts. Patent attorneys make money if there are more patents. They get more money in filing fees and in litigation, so more patents often are a good thing for them. Economists, on the other hand, are more likely to look at the overall system to see whether or not it really is a net negative or net positive. The patent system is designed to promote innovation. Taking a more expansive view of the entire system is what’s needed — but that’s not the job of legal experts, who tend to focus more on specific cases. So, really, all this new bill would do is hand more power to the legal experts and assume that will solve the problem — rather than recognizing that it only tips the scales further in the wrong direction.