Friday, February 13, 2009

Heritage Foundation on Patent Reform

The Heritage Foundation, a leader is conservative thought, recently issued an open policy-memo to President Obama on patent reform (link below). The recurring theme of the memo is that patent reform should serve to reinforce patent rights and certainty in the strength of patent rights in general rather than weaken the entire system to address a few narrow, limited problems. Heritage proposes that all proposed reforms should be measured by “whether they are likely to increase or decrease investments in industries that rely on patent protections to foster innovation.”
The memo takes a particularly strong stand against sweeping “reform” measures designed to stop the much ballyhooed problem of “patent trolls” or non-practicing entities. Despite the cacophony of complaints from serial patent infringers (can I call them “patent pirates”), Heritage argues that reform measures that dilute or weaken the legitimate rights of all patent holders because of the relatively rare abuses of a small minority.
Heritage also argues against reform measures that make it easier for an issued patent to be subsequently invalidated by a court or the patent office. Such measures encourage infringers to ignore patent rights or to litigate rather than settle patent infringement suits. Expansion of the “inequitable conduct” doctrine (or fraud on the patent office), which is sometimes used to invalidate patents for minor errors or omissions in the application process, is rejected because of its adverse effect on the patent system.
In this practitioner’s opinion, Heritage’s proposals are excellent. It downplays the exaggerated “problem” of trolls and rampant issuance of bad patents (there are bad patents issuing, but not as many as the serial infringers would have the public believe) while supporting measures designed to improve patent quality. A strong patent system is essential for technological advancement and the domestic development of new technologies is essential for our continued economic growth.

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