by Dennis Crouch
Petition:
- MCM-Petition-and-Appendix: (1) Whether inter partes review (IPR) violates Article III of the Constitution; and (2) whether IPR violates the Seventh Amendment to the Constitution.
- Response Due June 30, 2016.
Amici in Support of Grant
- MCM_INTERDIGITAL_TESSERA (“Characterizing something as a public right comes with certain consequences. By incorrectly holding that patents are public rights, the Federal Circuit’s decision has far-reaching and wholly implausible consequences that the Federal Circuit never grappled with and that have ‘nothing to do with the text or tradition of Article III.'”)
- MCM_NYIPLA (“The public rights doctrine is a complex issue that requires this court’s resolution.”)
- MCM_Mossoff (“[T]his Court has long recognized and secured the constitutional protection of patents as private property rights reaching back to the early American Republic.”) (Signed by Profs Mossoff (Scalia Law), Cahoy (Penn State), Claeys (Scalia Law), Dolin (Baltimore), Ely (Vandy), Epstein (NYU & Chicago), Harrington (Montreal), Holte (SIU), Hurwitz (Nebraska), Manta (Hofstra), O’Connor (UW), Osenga (Richmond), Schultz (SIU)).
- MCM_UNM (“[T]he threat of IPR devalues university patents.”)
- MCM_LAUDER (“Amici agree with Petitioner that the IPR procedure was beyond Congress’s power to impose, and its underpinning rationale—that patents are a matter of administrative largesse, rather than a constitutionally protected property right—is constitutionally infirm.”)
- MCM_HoustonInvestors (“Congress has exceeded its authority to undermine patents to give “patent pirates” encouragement to infringe patents in the well supported historical expectation that the IPR is likely to invalidate the patents.”
- MCM_SECURITYPEOPLE (“As noted in McCormick Harvesting Co. v. Aultman, 169 U.S. 606 (1898), once a patent is issued, it can only be cancelled or invalidated by an Article III court, not the executive branch. Similarly, as taught in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), Congress cannot conjure away the Seventh Amendment fact-finding process employed in Article III courts by mandating that traditional legal claims be tried to an administrative tribunal.”)
- MCM_IEEE-USA (“This bizarre state of affairs merits the close scrutiny of this Court. All issued U.S. patents deserve the same constitutional protections and legal standards in invalidation proceedings as those available in Article III courts.”) * UPDATE: The brief was filed by IEEE-USA (a division of IEEE).
Ned reports that IPR is egregious because it “eats at term” and that patents need to be enforceable from straight after filing. I question what he writes.
Under the EPC, you can ask the court to enjoin, as from the date of issue. At the EPO, regardless whether you are biotech, pharma or engineering, hardly anybody seeks swift grant. With a right to compensation for infringing acts running from the 18 month A publication, with PACE to give you a fast track to issue whenever you ask for it, and with pre-issue pendency giving you the chance to write claims covering the competitor’s new on the market infringing embodiment, and (until issue) to file endless divisionals, in unlimited numbers of generations, who wants early issue as the default?
What happens at the EPO – under its set of sovereign laws – is NOT quite analogous to what happens in the US under OUR set of sovereign laws.
A blanket post such as MaxDrei’s here that jumps at a direct comparison without noting the key differences is not helpful.
Maybe the answer is to take the patent judges and create them as Art. III judges with limited jurisdiction for patents and let them do all the patent trials.
You know there are bigger issues here. In MA they created courts for complex business issues because the judges needed to have advanced business training to understand the issues. Same issue here. Few judges want to have anything to do with a patent case and feel they are unqualified to handle it.
While you are at it (with Congress making those judges into Article III judges), throw in there for Congress to employ their Constitutional power of jurisdiction stripping and remove patent appeals from the Supreme Court.
My Comment #8 got a lively reaction, so here goes with another pro-IPR comment.
Experience at the EPO with post-issue inter partes disputed opposition proceedings is that it is inadvisable to have a pop at an issued patent unless you are going to be able to wipe it out. What doesn’t extinguish instead makes stronger.
What’s the experience thus far, with IPR? Any signs yet, of the sky-fallers’ predictions, of vindictive bullying “serial” assaults by Goliath, on meritorious patents of David? Or is it thus far actually working out much like at the EPO, that bad patents get culled while good ones don’t get attacked at all?
It is far too early to say with any meaningful confidence. The fact that the EPO’s opposition system has not appreciably destroyed innovation should make us sanguine, however.
Greg, you might actually ask that question of someone who knows the answer: Pat Choate.
Is there something in particular that Dr. Choate has written that you think would be worthy of my attention?
Actually, I just have had conversations with him. You might want to e-mail him and strike up a conversation.
Ned can you enlarge on that please. Does your favourite economist know more about oppositions at the EPO than I do? Or does he know more than the patent attorneys on Patently-O about the effects that the brand new IPR provisions of the AIA have had, on the level of innovation in the USA?
What exactly is it that convinces you that he knows the answer to “that question” even when nobody here does?
For my part, I think it might be hard to isolate any IPR effect from a dampening effect of recent Supreme Court decisions on those with a business model of investment in business method patents (and other subject matter of doubtful eligibility).
“For my part, I think it might be hard to isolate any IPR effect from a dampening effect of recent Supreme Court decisions”
Both you and Greg have made this statement.
Which makes any call for a “give me evidence” a bit suspect.
After all, this is a blog, and we do not have evidence gathering powers to begin with – so throw in the given supposition that “surely other things necessarily conflate any results we see,” the retreat to “give me evidence” can be seen as an empty rhetorical tactic (rather convenient to NOT employ critical thinking on any topic).
Max, on Choate, I know the man and trust him. That is all I need to know.
But, since I am not privy to the raw data upon which his conclusions are based, I cannot cite chapter and verse.
But we know that oppositions are critical when one has a system like Germany’s where validity is not considered by the same court that considers infringement and issues injunctions. But England and the US are not like Germany. Validity is always a defense. One cannot successfully enforce an invalid patent. There is no need for an opposition at all.
There may be a need for the patent owner to have his patent narrowed based on later-discover prior art. But that is the prerogative of the patent owner whether to seek narrowed claims.
Bang on, Ned. Germans file more than 60% of all oppositions at the EPO, indeed suggesting that bifurcating infringement and validity is what necessitates an opposition Section in the Statute.
Me, I think of the USA as a “strong patent” jurisdiction like Germany, that (for all practical purposes) bifurcates the issues. District courts do infringement, while the USPTO takes care of validity.
What would be sanguine would be to understand the differences in sovereign laws that apply (and not merely ‘jump’ at any ‘direct’ comparison).
Max, if and when you have an analogous procedure in the EPO, I think your views might change.
However, from the American point of view, the mere existence of oppositions is harmful, just as the mere existences of PGRs and IPRs. They allow the big pockets player to raise the cost of obtaining an enforceable patent so that only the wealthy can truly participate in the patent system. As a corollary, only the wealth can participate in inventing new products and services.
Patent examination needs to be a resource to the inventor to confine his patent to enforceable claims that his patent might be better enforced. There is a tradeoff between quality and expense. Asking for highest-quality can only be achieved at the greatest expense. Such is not in the interest of every patent owner or applicant.
Well yes, Ned. I have wondered for many years about the contradiction between the myth and the reality, in patent law in the USA. It is manifestly clear that it is a game where only deep pockets can use it effectively. Nevertheless, the fantasy is peddled, that it is all to help the Little Guy fend off the mega player.
On these pages I have read so often that the provisions of the AIA are deliberately skewed to favour Big Corp. Perhaps that is indeed the case, in particular with the IPR provisions.
Actually, if the estoppel provisions of the AIA were actually enforced, IPRs would be a real boon to the small inventor. You get a streamlined system with minimal discovery where you can settle all anticipation/obviousness contentions at once in a very short span of time. This would prevent well-funded entities from dragging litigation on and running up discovery costs so as to bleed the patentee dry.
Unfortunately, the CAFC has been very reluctant to apply the estoppel provisions to their intended purpose. That is a failing, but not one inherent to the statutory scheme that Congress intended.
Good to know, Greg. In Europe, of course, with IPR under the EPC, there is no discovery and no appeal beyond the EPO Appeal Board, which does settle all substantive questions of written description/eligibility/patentability/enablement/sufficiency and of priority as between rival filers. It doesn’t do derivation/theft (inventor named not the real one) cases, but they are so few and far between in practice that doesn’t matter.
So I guess that makes the EPC a real boon for small inventors. That’s nice.
No discovery….
Gee, I wonder which side that favors more…
MaxDrei, you belie your bias by attempting to color the reality as somehow being myth.
It is no myth – and quite part and parcel of the traditional strong US patent system that our structure was meant to be geared so that it was NOT a sport of kings.
Of course, since you do not truly approach a strong US system with a mind willing to understand, your bias is rather unsurprising.
(Check your history – the US is founded on the revulsion of the “old world” feudal mindset).
Someone might have answered this question before and I apologize if I missed the answer. It’s one of those hypotheticals that judges sometimes ask.
Let’s say that tomorrow, as a result of rank incompetence or a computer glitch, the PTO grants two hundred thousand invalid patents, including thousands of broad claims that, taken together, are infringed by tens of thousands of companies across the spectrum. Everybody rushes to pay the issue fee and “the deed is done”, so to speak.
Is it the position of the “IPRs are unconstitutional” crowd that, absent the government attempting to buy back all the improvidently granted invalid patents, the only Constitutional way to remove the cloud hanging over the “infringers” is two hundred thousand jury trials?
Just curious.
Truly a parade of horribles of the Oh Noes variety that would never happen….
For a variety of reasons. Including the fact that an issue fee acceptance is a one by one thing.
Truly a parade of horribles of the Oh Noes variety that would never happen….
I’m sure Justice Breyer will love that answer, particularly when the question is presented as a hypothetical directed specifically to the party claiming to be certain that his/her super important “Constitutional rights” are at stake.
Maybe take a deep breath and just answer the question. It should be straightforward right? Just follow the precedent …
I did answer it: your hypothetical is bogus.
Not much more clear and direct can I be, eh?
I did answer it: your hypothetical is bogus.
What’s bogus about it? Let’s say instead of incompetence leading to two hundred thousand junk patents in one day, it’s incompetence leading to a million junk patents in five years. Does your answer change? The only way to eliminate that incompetently created cloud over our society “constitutionally” is to hold a million jury trials? Because of something a “Privy Council” said in England in 1753?
Seriously? I dunno. Seems kinda silly to me.
Move the goalposts back from your desire to re-evalaute the historical context to the recognition that what happened then is how our system was formulated.
Your hypothetical remains bogus.
This a fallacy of limited choices. There are plenty of ways that have been proposed to enable efficient disposal of suits based on patents that are likely invalid. For instance, shifting of fees, sanctions, discovery revisions, etc. Do the research, there have been plenty of proposals. A new cause of action could be passed to allow for damages based on vague threat letters. The Constitution isn’t supposed to flex to provide ideal economic outcomes or convenient solutions. We should violate the right to a jury trial whenever it would be convenient?
HoPB: There are plenty of ways that have been proposed to enable efficient disposal of suits based on patents that are likely invalid. For instance, shifting of fees, sanctions, discovery revisions, etc. Do the research, there have been plenty of proposals. A new cause of action could be passed to allow for damages based on vague threat letters.
So your answer is apparently: “Yes, the only constitutional way to get rid of those junk patents is by jury trial. But we can make it really, really, really hard and risky — way more difficult and risky than it is now — to assert every patent and everybody will be totally on board with that! There have been all kinds of proposals! So many proposals. Nobody is going to challenge those proposals as unconstitutional. Nope.”
We should violate the right to a jury trial whenever it would be convenient?
You’re assuming your conclusion.
The (wrong and twisted) paraphrase followed by the “you are assuming your conclusion….
Classic AccuseOthersOfThatWhichMalcolmDoes.
Yay ecosystem!
To me it seems self-evident that ex parte filing and prosecution will result in wrongly issued patents. Such patents do great mischief, especially in a jurisdiction that prides itself on having “strong” patent system.
To me then, it seems self-evident that there has to be a practicable and clean, quick and efficient way to correct such administrative errors. Going each time to the CAFC strikes me as less than practicable or realistic or reasonable.
Ned, or others, does it matter or not, that there are wrongly issued patents. If it does, what would you espouse as an efficient solution that makes proportionate use of precious and limited resources, if you are going to do away with IPR?
“To me it seems self-evident that ex parte filing and prosecution will result in wrongly issued patents”
You seem to have a fundamental complaint with the process and seek to depend on some ex post grant bandaid to achieve an Ends without regard to the means to that Ends.
Love how you also slide in there a jab at “strong patents” AS IF being strong is “bad.”
Quite to the contrary, being strong is good.
Being weak is what encourages disrespect for the patent system and invites “efficient infringement.”
But you already know this – because I have already informed you of this.
Nobody’s perfect, are they anon. No PTO Examiner can know all the decisive facts. It is inherent in an ex parte procedure where the Office hears only one side of the argument, that stuff will get through to issue which didn’t ought to have. So a correction mechanism is needed. It stands to reason.
The “stronger” the patent system, the greater the amount of mischief can be done by the owner of a wrongly issued patent. That’s what you want, isn’t it? So, the stronger the system, the more important a correction mechanism is.
Only a one-eyed patent maximalist could deny these things.
…says the one-eyed patent minimalist…
The presumption is that the Office does its Fn job.
Your whine here of “b-b-but some will slip through” is NOT best answered with either post-grant band-aids NOR making all patents weaker.
You forgot to address the (far worse) scourge of weak patents that promote efficient breach.
And once again, your paean against ex parte” is a fundamental “concern” – one that would be better served with a discussion of changing that fundamental aspect. Otherwise what you will obtain is a biased and corrupt system being run by Big Corp with their established monies and desire to avoid disruptive innovation.
The presumption is that the Office does its… job.
Right, and the IPR process is just part of the Office doing that job.
Sorry Greg – your comment is a non sequitur and an obfuscation of the critical point (as I have already posted, it is simply the wrong question to ask – or indicate as you do here – whether the Office is “doing its job.”
Your reply is just not helpful.
Fair enough. I was being cheeky, not helpful.
By way of more substantive response to your earlier post…
Why? I see an assertion here, but not an argument. From where I am standing, the “band-aid” of IPR is a good way of dealing with the problem of improvidently granted claims. It puts the burden of clearing them off the landscape (which is a benefit for all of us) on those best able to afford it, but reduces the transaction cost to make it easier for the would-be challenger to bring the challenge.
Nor does it make “all patents weaker.” If your claims are already novel and nonobvious over the entire state of the art, you have nothing to fear from IPR.
Mind you, this is only true so long as the CAFC actually gives some teeth to the estoppel provisions of § 315, which they have not been doing so far. This, however, is more the fault of the CAFC than of Congress, who drafted the estoppel clearly enough.
Greg: If your claims are already novel and nonobvious over the entire state of the art, you have nothing to fear from IPR.
This. And the fact is that applicants are still filing applications at record rates and patents are still being licensed left and right. Are licensing rates lower? Maybe. That’s not a constitutional problem. The government never promised patentees that their patents would never be subject to ex parte challenge. On the contrary.
Ideally, of course, the IPR regime will be expanded to include subject matter eligibility challenges, given that those challenges are inextricably linked to the state of the art.
The “you have nothing to fear” is CR@P and ignores the costs and possibly endless serial attacks.
It is nothing more than hand waving because the ends are desired.
(The parallel to the criminal world and abandoning any proper search and seizure protections because “the innocent have nothing to fear” should be painfully obvious)
I agree with you about the serial attacks. That is why I said elsewhere on this thread that it distressing how weakly the CAFC are applying the estoppel provisions of § 315.
As for the analogy to criminal law and the IV amendment, not only is the “parallel” not “painfully obvious,” this is just about the most silly and strained analogy you could possibly have attempted. To be subject to an IPR is nothing like being subject to criminal trial, and having a claim declared unpatentable is several, several degrees shy of being sent down to Sing Sing.
Now you are not only being “cheeky” but downright silly in closing your eyes to the parallels – of course there are differences and of course those differences are, well, different – but you clench tight your eyes to the parallels (or seek to diminish them) without even a meaningful pause.
Sorry Greg – you are losing your “reasonableness” and I suspect that it is because you are aligning too closely with a desired Ends and starting to realize that the existing means really do have some serious issues.
Uh huh. Whatever…
“anon” — The parallel to the criminal world and abandoning any proper search and seizure protections because “the innocent have nothing to fear” should be painfully obvious
Except that in the case of IPR’s there’s been no “abandonment of protections”. Not even close. We’ve already been through that.
If the PTO is acting arbitrarily, they can be sued.
As for innocent people being afraid, those fears have already been taken into consideration. That’s why IPRs were created in the first place. You know, reams upon reams of junk patents being asserted in East Texas against hundreds of disparate defendants. Somehow you’d forgotten all of that? How convenient for you.
Not forgotten A just not buying the Big Corp manufactured “OhNoesTr011s” propaganda.
“there’s been no “abandonment of protections”. Not even close. We’ve already been through that.”
We’ve been through the fact that you are wrong on what happens with IPR.
IPR’s are political star chamber proceedings. And since a certain class of patent owners are treated differently than the favored class – it also violates equal protection.
Bother, I see that I failed to close my blockquote. Let’s try that again.
Huh? This is an empirical claim, so you might do us the favor of adducing the evidence behind it instead of tossing off such assertions so blithely. If you do not care to make the argument for your assertion, you can hardly be surprised if no one takes it seriously.
Snagged in the “moderation” filter:
An “empirical claim”…?
0pen your eyes s0n – the active trend is all around you.
(For evidence, just look at the AIA and which types of entities promoted that CR@P legislation)
The presumption is that the Office does its Fn job.
The evidentiary burden remains on the challenger to prove invalidity. IPRs change nothing with respect to the legal fiction of that “presumption.”
the (far worse) scourge of weak patents that promote efficient breach.
Wow. Wait a minute … what?
You’re suggesting that a system where likely invalid patents — held by a tiny tiny tiny fraction of the populace — are ignored by the public is worse — far worse — than a system where it’s a taken for a granted that you’ll be dragged into East Texas and forced to spend millions to defend yourself against some junk that should never have been granted? Really?
The patent maximalist script just got a lot more interesting. Tell us more about this “scourage” of “weak patents”, “anon.” It sounds really awful. How many patent owners have applied for food stamps in the past year? Surely you have the data.
a biased and corrupt system being run by Big Corp with their established monies and desire to avoid disruptive innovation
Class warfare! Class warfare! LOL
Seriously, if Q and his disciples had been complaining when Dave “Big Corp” Kappos was burning the system to the ground you might have some credibility left. But you were cheering the bias and corruption then. And we all know why.
I did not get past the very basic and incontrovertible error of:
“IPRs change nothing with respect to the legal fiction of that “presumption.”
I did not get past the very basic and incontrovertible error of: “IPRs change nothing with respect to the legal fiction of that “presumption.”
That’s not an error. Before IPRs we had ex parte re-examination and the “presumption” was dealt with identically, i.e., IPRs changed nothing with respect to the legal fiction of the “presumption.”
Your logic remains stellarly bad.
Exactly. That is why the IPR process is a salutary part of the overall patent system. The PTO simply does not have the resources to search all the art as thoroughly as is really necessary to be certain that a claim is both novel and nonobvious. So we put the burden of finding the most relevant art on private actors, who have more resources than the PTO and more motivation to do it right, and we let them do the searching. Then we bring that new art back to the PTO, and let them take another knock at it in light of the superior quality search that has just been done.
This, of course, only serves to establish that IPR is eminently sensible, not necessarily that it accords with our U.S. constitution. There is no necessary connection between “X is a good idea” and “the Constitution permits X.” Still and all, things are presumed constitutional until they are shown to be otherwise, and so far the case presented here and in the linked briefs for unconstitutional is only plausible, not ironclad (except that, for aught I know, Ned could be 100% correct about the VII amendment aspect; I would not know if he is or is not).
I think that there are ways that the Court could construe the AIA that are unconstitutional, but my hope is that the Court construes the AIA in a way that preserves its constitutional validity. It would be a shame to see IPRs thrown out of the system.
… or eminently captured by those interests who ALREADY have a large supply of cash.
You omit a very real asymmetry in your “band-aid.”
Oops Greg – you are getting sloppy in your eagerness to achieve a desired ends
I do not see how IPRs are asymmetric. It may be (for aught I know) that IPRs are being used by wealthy corporations to attack smaller companies, but the reverse is also true. Consumer Watchdog is hardly the face of the Fortune 500.
Ad hominems do not suit you. You are better than that.
It was not an ad hominem.
You aregetting sloppy and it is more than apparent that your desire for a specific Ends is driving your desire to “not see” the problems with the means.
Sorry that you took the statement as an ad hominem, as it clearly is not. I am sorry because this means that you will not stop and think about what you are doing and reflect the veracity of my observation.
You don’t see….?
Again…?
Sport of Kings – base any aspect on a “who has the money to do” and you slant the playing field.
An exception may exist – but that’s an exception that proves the rule as they say.
Greg, the PTO could simply issue unexamined patents and offer the patent owner the opportunity to have his patent examined post grant so that it might be better enforced. But patent term is measured from filing, and all this PTO procedure simply eats at term. Patents need to be enforceable almost from filing, and patent owners need to get out from the PTO quagmire as quickly as possible.
Going into court with a patent that is not clearly valid, not clearly infringed has got to result in some sort of sanctions. That is why the PTO is there as a resource to the patent applicant to help him clarify exactly what it is that is novel.
Now, as you know, once a patent owner accuses anyone of infringement, that party can bring them to court. If the patent owner is not prepared to defend validity or assert infringement, he or she is going to lose, be sanctioned an otherwise be made certain they made a mistake.
IPRs are harmful to the patent system because they can be brought by anyone. No standing is required. Big boys threaten and actually do file IPRs not only on patents they are accused of infringing, but on whole portfolios of the small fry. The mere existence of the IPR procedure is by itself all but killing the US patent system.
You might want to ask any university what they think of IPRs. link to ipwatchdog.com
This is an empirical claim, and it is just way too early in the process to have the sort of data on hand to establish it.
My support for IPRs is predicated on a theory of how the patent system works and/or should work, and I am quite willing to believe that my theory is inconsistent with actual lived experience. Lots of theories are.
But I will actually need to see the data before I am convinced that my theory is wrong, and you simply do not have the data to back up your assertion. No one has, because IPRs only came on the scene a few years ago now.
If by (e.g.) 2018, some measurable index of innovation is way down, I will be happy to reconsider my support for IPRs. Until then, however, claims that it is “killing” the system are just so much empty hyperbole.
Ned: Going into court with a patent that is not clearly valid … has got to result in some sort of sanctions.
All well and good.
Except that granted patents are “presumed valid” until declared otherwise by a court or the PTO. And you know as well as I do that most of the same folks who are dying to see IPRs deemed unconstitutional will never, ever advocate for the removal of that presumption. In fact, they’ve repeatedly relied on the existence of that presumption both to argue for the unconstitutionality of IPRs and to defend the worst tr0lling behavior out there.
The mere existence of the IPR procedure is by itself all but killing the US patent system.
That is ridiculous.
You might want to ask any university what they think of IPRs.
Did someone take a poll of all U.S. universities and ask them what they think about IPRs? If so, I’d love to see the question that was asked and the results.
MM, good point on the presumption.
Regarding IPR procedures — it is killing the patent system for small inventors, startups and universities. You might want to visit the other patent blog for a moment and read Chris Gallagher’s piece that U R&D is being negatively impacted by a number of factors, but post-grant invalidation is prominent.
link to ipwatchdog.com
You might want to visit the other patent blog for a moment and read Chris Gallagher’s piece that U R&D is being negatively impacted by a number of factors, but post-grant invalidation is prominent.
Ah, so a substantial portion of university research was being driven by the licensing of invalid patents.
That’s really fascinating.
Why of course, MM, the lowering of the standard of proof demonstrates that the patents were invalid all along.
Ned,
I cannot tell if you were holding up your sarcasm sign.
I read the linked piece. Two responses:
1) Almost nothing was said about IPRs & PGRs. I am not sure why this article is supposedly relevant to the present discussion.
2) One would have to look really hard to find anything in there that might be called “evidence” for the author’s conclusion. It was long on buzzwords, but rather short on facts.
Assuming that there is a consensus view among universities, I am not sure what this proves. We do not have a patent system merely to amuse universities, or any other set of patent holders. We have a patent system to incentivize innovation.
If a given aspect of the system incentivizes innovation, it is a good aspect. If a given aspect gets in the way of innovation, it is a bad aspect.
It is really as simple as that. How parties feel about various aspects of the system is really beside the point, except to the extent that it impacts their incentive to innovate.
If there is evidence that universities (or anyone else) is doing less R&D because of IPRs, I would be very glad to see that evidence, and that would seriously shake my belief in their value.
Mind you, it will be hard to tease out the incentive effects of IPRs because they came on the scene roughly contemporaneously with Mayo/Myriad/Alice. I am convinced that those cases have done quite a lot of damage to the innovator’s incentives, so if there is a steep drop in R&D after IPRs started, it will be important to see how we might tease out the effect of IPRs compared to the effect of appallingly bad SCotUS precedents.
Greg: it will be hard to tease out the incentive effects of IPRs because they came on the scene roughly contemporaneously with Mayo/Myriad/Alice. I am convinced that those cases have done quite a lot of damage to the innovator’s incentives,
Is there any evidence that universities are doing less research because of those cases?
Greg, “We have a patent system to incentivize innovation.”
Agreed.
So, why is that you have a hard time equating the cost of obtaining a patent that can be enforced in court with the incentive to innovate?
I do not have a hard time imagining the connection between cost to enforce and incentive to innovate. But I also do not have a hard time imagining a connection between expense of removing a blocking patent and incentive to innovate.
Which of these two competing forces wins out in the real world? This is an empirical question. Show me the data (once we have had enough time to acquire a meaningful data set) and I will happily change my mind that IPRs are beneficial on balance. Right now, we have no data, so I have only my Bayesian priors, so to speak.
“Removing a blocking patent.”
Two points here.
1. It is well understood that patents actually spur innovation by forcing design arounds.
2. There one can always take a license and still challenge the validity of a patent. One is not blocked.
The concept you are proposing is really is this and it is advanced by the West Coast: patents hinder the introduction of new products and services, so it is better to ignore them and then deal with the patents of others after the fact, but where the patent holder gets only a small royalty at best. This is called, “efficient infringement.” It is modeled on the idea of “efficient breach,” which is also being advocated by the West Coast.