A client sent me this link this morning (2/6/2013) … Patent Reform, System Should Be Abolished, Fed Economists Say. I don’t know whether he (the client) was attempting to anger or humor me, but I read the linked article, gave it some thought and found myself nodding in agreement with much of what was said. In my almost 40 years of experience with patents and the Patent Office, I cannot say that there have been any substantive improvements in the practice since the Patent Act of 1952.
One observation made by the authors of the article is that the patent system is damaging public health by raising the cost of prescription drugs while failing to spur development of new compounds and methods for life-saving diseases. Such an observation is without merit and damages the credibility of the authors. The American pharmaceutical industry, and the society it primarily serves, has benefited immensely by the patent system, and the costs of that system did not deter drug development in the least. Compared to the costs of drug research and development, the costs of patent protection are inconsequential. And I would go so far as to say that the good health and well-being that most Americans enjoyed during the second half of the 20th Century is due in no small part to the way in which the U.S. patent system protected the work product of the American drug industry.
But, to the authors’ points in questioning the value of patents to the digital, .com and maybe even much of the biotech industry, I’m sympathetic. I witnessed the advent of the biotech industry when there was no one within 3,000 miles of the Patent Office sufficiently knowledgeable to “examine” the applications attempting to monopolize this new technology. I’ve also seen the triviality of the digital, .com and business method patents, and I can assure you that all but the patent litigators would have been better off without them.
The authors regain some credibility in criticizing the soon to be implemented America Invents Act. They quote the Patent Office in saying that Obama’s new Act will make “it easier for American entrepreneurs and businesses to bring their inventions to the marketplace sooner, converting their ideas into new products and new jobs,” and they go on to reiterate that the Act “will help companies and inventors avoid costly delays and unnecessary litigation, and let them focus instead on innovation and job creation.” This is so much governmental hyperbole and nonsense that I almost feel complicit repeating it. I’ve yet to see more legislation generate anything but bureaucracy and red tape.
So, do we need to abolish the patent system? I don’t think so. But would it benefit from a dramatic revision? Without a doubt.