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.