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Patent System Failing to Provide Incentives?

As much as I enjoy being involved with our U.S. patent law and patent system, especially as they are supposed incentives to innovation, there are arguments for abolishing or substantially changing parts or all of the U.S. patent system.

On March 4, 2008, Jim Bessen presented a summary of his book titled “Patent Failure” at the Berkman Center Luncheon Series at Harvard. A blog entry gives a taste of his arguments of patent [system] failure, but the audio (MP3 format) contains the entire presentation. I highly recommend a listen. Jim and his co-author of his book, Michael Meurer, present some compelling arguments against the continuation of the current U.S. patent system.

Here is a brief recap of some of the points made in the presentation. One argument against our current system is that there is no defense against accidental patent infringement. While a land surveyor can render a meaningful professional opinion that delineates the boundaries between properties, patent attorney opinions are worthless and often cannot realistically predict the eventual judicial determination of the patent claim scope. Such is the state of patent attorney opinions despite people paying many thousands of dollars per opinion. Companies, R&D departments, and inventors often cannot get meaningful clearance of their invention because there are just too many patent applications being filed in most technical areas. This problem is especially acute with inventions that involve software. The pharmaceutical and chemical industries are notable exceptions.