Promote the Progress?
A recent blog entry at Patently-O discusses the economics of so-called "patent thickets" (which, I gather, is the new name for what used to be called "a crowded art"). There's quite a bit of detailed and fascinating discussion concerning, among other things, the recent ebay decision and how patent owners in such a "thicket" will act, given that injunctions are (supposedly) no longer a foregone conclusion.
As I understand it, the question is whether an extensive "patent thicket" might result in more or less patent litigation and whether the ebay case will reduce or even increase patent litigation where such a thicket exits. While I don't purport to know or understand all the economic theory behind the competing views, I was struck by what I think is a misguided emphasis among the commentators. Why all the theorizing over what effect this will have on litigation and the propensity of patent owners to sue? Why all the concern whether this will encourage or discourage so-called "patent trolls"? Is the goal of the patent system simply to make life easier for lawyers and judges? Is it to let large companies steal technology with impunity? And (to be fair all around) is it simply to provide lucrative opportunities for contingent-fee patent trial lawyers like me?
The constitutional justification for the patent system is, of course, to "promote the progress of science and useful arts" -- not to provide patent lawyers with a comfortable living or to make life easier for federal judges. The question I have (and I really don't know) is whether the patent system is or is not fulfilling its mission of promoting the progress of science and useful arts. Has anyone actually done a scientific study of whether patents do promote scientific progress and whether the profound changes in the patent system over the past twenty four years have been effective in actually achieving that goal?
There's no question that the explosion in patent and IP growth has been great for lawyers. It's also been good for companies (both large and small) and even individuals able to exploit their patents. But again, the question is whether progress in science and useful arts has actually been promoted by what has gone on and what is presently going on. Frankly, I'm not sure anyone actually cares about this anymore.
I've always heard that U.S. District Court Judges are among the most powerful individuals in the country. In light of ebay and the abuse of discretion standard, they now have the power to decide which industries die and which thrive. My guess is that very soon statistics will be generated on which Districts are most likely to grant an injunction and which are not. It seems like a step back in time (pre-CAFC) where the battle over venue was the pivotal issue of the case.
The term "patent thicket" orignated in an article by Carl Shapiro Navigating the Patent Thicket.
Here is part of the abstract:
In several key industries, including semiconductors, biotechnology, computer
software, and the Internet, our patent system is creating a patent thicket: an
overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees. The patent thicket is especially thorny when combined with the risk of hold-up, namely the danger that new products will inadvertently infringe on patents issued after these products were designed.
Your questions bring me back to an article I read earlier today on one so-called patent troll.
http://www.politico.com/news/stories/0608/10808.html
This article is about DataTreasury, a small two person company out of Texas that holds a patent on the process of electronically processing checks. As a result of the BMP, they are holding up the entire banking industry and preventing them from using this more efficient technology (that was undoubtedly in use far before DataTreasury showed up at the Patent & Trademark Office. Credit cards are one example).
My point is that DataTreasury is a clear point that patent trolls can certainly benefit attorneys(there has been a multiplicity of litigation arising out of the DT patent) but perhaps harm the broader social good, and deter innovation or progress. Look at the article (its specifically on a Congressional request of the GAO). It's interesting