Planet Money Explores 'How To Fix The Patent Mess'

from the in-case-of-emergency,-call-mark-lemley dept

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In something of a follow up tofamous episode about the horrors of software patents , the Planet Money team brought on Mark Lemley to talk about how to fix the patent system . If you're aware of Lemley (or read Techdirt) what he talks about isn't all that surprising. He does note that, even if software patents are particularly silly, he doesn't agree with trying to carve them out specifically. Instead, he's still mostly focused on fixing the patent system by properly enforcing the laws already on the books. That means having the USPTO and the courts actually recognize that too many software patents are on general ideas ("functional claiming") when that's not allowed.Next, the courts and the USPTO need to get much better at rejecting patents for obviousness. He doesn't quite get intoto do this, though I'm still a big fan of using independent invention as a sign of obviousness. He does note that the KSR case (which isn't named in the story) helped move the needle just slightly in the right direction. In that case, the court noted that merely combining two existing inventions is obvious. From there, he suggests recognizing how many patents stack up into an existing innovation -- and what that means. So, using the 250,000 patents in a smartphone as an example, he notes that it's ridiculous for any one patent to hold up innovation in such a scenario, pointing to the MercExchange ruling (again, not named) that said the courts shouldn't issue automatic injunctions for infringement. In other words, when you have 250,000 patents in a smartphone, infringing on one shouldn't hold up the entire device.The last bit, which still needs work, is fixing damages. Again, using the smartphone example, he points out that when you have 250,000 patents, you can't claim that each patent deserves 5% of the revenue. Otherwise, you don't have smartphones anymore. Of course, fixing damages is still a work in progress. Congress tried to do it with the patent reform bill that was debated for about seven years -- and patent system supporters hit back hard on damages reform, such that the real fixes didn't make it into the final bill. The hope is that the courts will take care of it, but that still seems like a crapshoot.

Filed Under: damages, fixes, functional claiming, injunctions, mark lemley, patents, software patents