Disarmament should be priority in patent wars

2013-06-13T00:00:00Z Disarmament should be priority in patent warsBloomberg View Bloomberg View Arizona Daily Star
June 13, 2013 12:00 am  • 

The following editorial appears on Bloomberg View:

In the fall of 2011, President Obama signed a sweeping package of patent reforms into law. He promised they would improve patent quality, reduce excessive litigation, encourage innovation and create jobs.

Last week, the president unveiled another round of sweeping patent reforms. He promised they would improve patent quality, reduce excessive litigation, encourage innovation and ... you get the idea. Obviously, the president's first attempt didn't work. His latest legislative proposals and executive orders won't either. Although they move in the right direction, they fall short of the drastic overhaul that the shambolic U.S. patent system needs.

Too many low-quality patents are being approved. Applications have increased fivefold in 30 years, meaning overworked examiners sometimes spend only a few hours to determine if an invention is novel and nonobvious. Worse, too many companies have stopped inventing in favor of litigating over patents.

Patents are supposed to encourage innovation by giving inventors a 20-year monopoly for commercialization. Today, the opposite is the case: Patents are stifling innovation. The problem goes beyond the main targets of Obama's new proposals: "patent assertion entities," better known as patent trolls, whose business model consists of holding many low- quality patents and suing infringers, real or otherwise. The trolls threatened to sue more than 100,000 companies last year, the White House says. They prey on smaller businesses by claiming, for example, that a jewelry boutique is violating a patent every time it scans a document. One study concludes that defendants paid $29 billion in 2011 to trolls, four times what they paid in 2005.

Big technology companies play this game, too. They spend large sums that could go toward research and development on lawyers and lawsuits. Witness how Apple and Samsung Electronics, which uses Google's Android operating system, have tied each other in knots with dozens of lawsuits filed on four continents over smartphone technology.

That brings up another problem: the increasingly pivotal role of the U.S. International Trade Commission. On June 4, the ITC ruled against Apple in a dispute with Samsung, which claims that Apple infringed a patent for data transmission protocols between mobile phones. After a 60-day review, Apple may be barred from importing some older iPhone and iPad models into the United States.

Judging whether a product violates a patent is hardly the ITC's expertise, and it can't award financial damages. Yet it is the litigants' favorite venue, because the standard of proof is lower than in U.S. courts and because the ITC can impose an import ban. The mere threat of such a ban often induces settlements.

The result of all this is an arms race, in which the goal is to amass patents to use against rivals.

Among his dozen proposals, Obama would make patent enforcers divulge the real party behind any patent, which could stymie the trolls, whose main weapon is anonymity. He would provide legal protections for users of common products. Obama would also tighten the ITC's rules for import bans and the patent office's standards for software patents to make sure they aren't overly broad.

These are all perfectly fine, piecemeal changes. But the quickest path to a more efficient system is to modernize the patent office itself. And that means - crazy as it may sound - hiring more patent examiners and giving them less to do.

Congress should switch the burden of proof so that applicants instead of examiners must search so-called prior art to see if a patent has already been awarded. The patent office should also consider whether software patents should be awarded at all (they already receive copyright protection).

To reduce frivolous litigation, Obama would make it easier for judges to decide that the losers cover court costs. A better course: Require losers to pay.

For the big players, we offer this suggestion: Presidents have the authority to override ITC import bans. They rarely do. But now that the ITC is about to ban some smartphone imports, which would limit consumer choice, Obama should step in. That would send a clear signal that the patent wars must end. It's time for disarmament.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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