Modified on October 28, 2011
A patent is an exclusive legal right to own and market an invention or improvement for a limited period of time, in exchange for public disclosure of the invention. The U.S. Constitution grants Congress authority to award patents; specific patent laws are contained in Title 35 of the United States Code, which establishes the U.S. Patent and Trademark Office (USPTO) and sets forth the process and standards for obtaining a U.S. patent. Throughout the history of the country, patent law has been periodically amended as the needs of innovative industries in the U.S. have changed. Today patents affect not only the manufacturing and chemical industries, but agriculture, biotechnology, finance, consumer electronics, and software. Critics of the current U.S. patent system have argued that there are too many patents covering too many different subjects; that many patents are of questionable validity; and that patents are too often abused by aggressive litigants. Proponents of the current system argue that strong patent rights are essential to sustained innovation and that weakening patent rights in the U.S. will harm the industries that rely heavily on patent system.
These issues arise in discussions of patent reform
TAP Academics researching patent reform include
- How to measure the costs and benefits of the patent system to companies, consumers, and the economy as a whole.
- How the patent system and proposed changes affects small firms, individual inventors, universities, and scientific researchers.
- Whether patent reform should target systemic improvement, or focus on those areas where the most patents are likely to be litigated.
- Whether granting patents in the areas of finance, software, and biotechnology has been helpful or harmful to innovation, and whether the patentability of some types of inventions should be limited.
- Whether clearer guidelines that accommodate the advances in technology since the laws were written might improve the patent system by making it easier to identify if something qualifies as patentable.
- If it would improve the system to change to the rules for litigating patent disputes, such as evidentiary rules or the presumption of validity.
- Whether remedies for patent infringement, including the rules for awarding injunctions and damages, are appropriately calibrated.
- Whether changes in funding, management, or technology at the USPTO would improve patent throughput or quality.
- How proposed reforms would affect sectors where patents are seen to be helpful, like pharmaceuticals, as compared to those where patents are seen as detrimental, like software.
- If granting too many patents results in “thickets” that stifle real-world innovation.
- Whether firms that own patents without actually producing patented products, sometimes tagged “patent trolls,” should be treated differently in court or by Congress.
- Whether the creation of the Federal Circuit Court of Appeals in the 1980s resulted in a pro-patent bias in court decisions or reduced the quality of decisions; and, if so, how to address this.
- The extent to which patent law in the United States should be harmonized with patent laws of other countries.
Recent Developments Robert Barr
of the Berkeley Center for Law & Technology is a former patent counsel with Cisco Systems and has testified often on patent reform.
of George Washington University Law School holds degrees in physics and law, and writes widely about patent reform and the Federal Circuit Court of Appeals.
of George Washington University Law School writes about the economic impact of patent reform.
of Stanford Law School has authored many works about the patent system and patent reform at the patent office and in the courts.
“Those court decisions didn't tell us how to calculate damages. They told us how not to calculate damages.” Quoted in Reuters
of Harvard Business School writes on a broad range of topics relating to patents, several focused on business method patents.
of Boston University School of Law has written many works relating to empirical analyses of software patenting and litigation over such patents.
of Stanford University has written about changes to patent procedures that might improve the United States patent system.
of Pennsylvania Law School writes about patent reform and courts.
The U.S. Supreme Court issued an important ruling on tests for patent eligibility for processes and business methods in Bilski and Warsaw v. Kappos
in June 2010. On September 16, 2011, the Leahy-Smith America Invents Act
was signed into law, and among other new patent guidelines and regulations, turns the U.S. patent system into a “first-to-file” from a “first-to-invent” system.
On January 4, 2011, P.L. 111-349
(formerly H.R. 628 and S. 299) was signed into law, establishing a pilot program to train judges to enhance their patent expertise.
In 2011, the Leahy-Smith America Invents Act
was passed by Congress and signed into law. It provides new patent guidelines and regulations.
H.R. 243, the Patent Lawsuit Reform Act of 2011
, amends the rules for awarding damages in some patent suits, and addresses fines for counterfeiting.
Also introduced in 2011, S. 139, the Equal Access to Tax Planning Act,
would limit the patentability of tax planning methods.
To see a calendar of events of relevance to TAP academic work, please see the TAP Events page
For media inquiries on a range of TAP topics, or for assistance facilitating interviews between reporters and academics, contact TAP@techpolicy.com