Unintended Consequences Meet Patent Law Reforms
from the making-the-system-worse dept
For all the talk about patent reform these days, it's unfortunate that every time we see reform proposals, it looks like they'll make the system worse. The latest proposal is winning lots of applause from some in the tech industry, but that doesn't mean it's actually a good proposal. The basic plan is for the government to spend money educating judges to be better informed on patent issues, including hiring "specially appointed clerks with patent expertise." On the face of it, that sounds great -- and the article even suggests this could help with the "patent troll" issue, though never bothers to explain why or how. To understand, though, why this may be a bad proposal, you just need to look at history. About twenty-five years ago, due to various complaints about jurisdiction shopping and other issues, the government created a single federal court to handle patent appeals, the CAFC. At the time, there was some (justified, it turns out) fear that this court would be packed with "patent experts" who came from a world where they benefited from more, not better, patents. Indeed, the court was quickly dominated by former patent attorneys, who quickly changed some fundamental aspects of the patent system: expanding the types of things that could be patented and upholding the validity of many, many more patents than the courts had done previously. This, in turn, resulted in even more of an effort by companies to secure questionable patents, as potential patent holders recognized that there was an even higher chance that those patents could be used to bully others -- as we're seeing in so many cases today. This was exactly the fear that some had raised about a patent-focused court with "undue specialization." That's why it's not clear why increasing the "undue specialization" will help. It's not explained what kind of "education" these judges will get, but it's likely to be one that comes from those who stand to benefit from even more patents, rather than those who are actually focused on bringing the patent system back to it's original purpose: to promote innovation.