In this post I reprinted a letter to the editor that I sent to a patent lawyer trade journal, IP Today, in which I responded to the comments of a patent attorney to the effec that “the patent system is necessary for there to be invention and innovation.” I explained that
There is … no conclusive evidence showing that the purported benefits of the patent system–extra innovation induced by the potential to profit from a patent; earlier-than-otherwise public disclosure of innovation–exceeds the significant and undeniable costs of the patent system…. Is the patent system “worth it”? Who knows? Apparently no one does. It seems to follow that we patent attorneys ought not pretend that we do.
I received today an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. This person is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:
Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it.
Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries.
I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA.
I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.
Now this is an honest patent attorney. As I told him/her,
What is worse, to me, is when patent attorneys pretend to know, but of course, do not–and they know they do not, and they do not care. It is just dishonest. I don’t mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it’s an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the “benefit” of the system.
I will say that my point (not really in the letter, but expressed elsewhere — e.g., There’s No Such Thing As A Free Patent–is not only that is the system now probably “not worth it,” but that due to the subjective nature of value, it would never be possible to demonstrate that it is “worth it”. But that is methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.