Patents: The Bleeding Edge of Technology Policy
While patents have long been at the heart of American technology policy, information technology has profoundly challenged the U.S. patent system -- as seen in the intense inter-industry debate over patent reform in Congress. This panel will examine the politics of patent reform in the context of international controversy over patent policy, including a string of Supreme Court decisions, the battle over software and business method patents, and growing tensions between patents and IT standards.
Brian Kahin, Computer & Communications Industry Association/University of Michigan
Michael Meurer, Boston University Law School
Emily Berger, Electronic Frontier Foundation
Konstantinos Karachalios, European Patent Office
Patents have been at the heart of national technology policy since the founding of the nation. While patents have often been controversial, the debate has broadened and intensified over the past 15 years. Reform legislation before Congress has generated intense controversy characterized by unprecedented inter-industry division. After years of little interest in patent law, the Supreme Court has stepped in to overrule doctrines of the specialized patent appeals court, the Court of Appeals for the Federal Circuit. Controversy over patents for software and business methods persists. In Europe, a directive on software patents was the subject of intense lobbying at the highest level before being voted down.
In the past few years, a number of developments have attracted attention:
- âPatent trollsâ has emerged as a phenomenon in the IT sector. Trolls are typically non-producing entities who acquire patents for the purpose of extracting settlements from companies that create and distribute fully functional products. Trolls take advantage of the fact that independent invention is not a defense to patent infringement, and that the vast numbers of patentable functions in software and other IT products makes clearance searches unaffordable and inconclusive.
- An outpouring of economic research has yielded new insights on how patents function in the marketplace. New research helps illuminate some of the widely perceived problems with software and business method patents.
- Growing concern about effect of abstract patents on free speech, teaching and learning, research, and even philanthropic operations has led public interest organizations such as EFF and the Public Patent Foundation to challenge objectionable patents.
- Both the Patent and Trademark Office and the Federal Circuit have shown an interest in restraining the scope of patentable subject matter.
- Concerns about patent quality have led to experiments in opening up the examination process to peer review.
- The development of industry standards, which is especially important to advancing innovation in the IT sector, has been increasingly slowed and jeopardized by patent holders both inside and outside of standards development processes.
This panel will look at patent policy as technology policy and the special challenges posed by the nature of innovation in IT and the widespread use of IT throughout the global economy. It will also examine how these challenges are driving efforts for patent reform and the long-term prospects for making the patent system more responsive to IT and broader social and economic needs.