Monday, June 8, 2015

Don't change too many things at once

When debugging a computer program, it is common wisdom to make a change and test it before making another change.  That way, we can see if the first change fixed the problem before making more changes.

The same thing should apply to Congressional and judicial changes to the patent system.  In a few short years, we've had several major patent cases and one major legislative reform (Bilski, the America Invents ActMyriad, and Alice).

Patents are a slow business:

A patent can take years to issue (my brother might hold the record, with a patent that he filed for on October 14, 1999 that did not issue until 13 years later, on October 16, 2012).

A patent appeal within the administrative Patent Trial and Appeal Board can take five years or more (I haven't had one of mine decided in less than three years).

Patent litigation can take years to go from initial discussions to jury verdict.

Appeals to the Federal Circuit (where most judicial patent questions are decided) can take years.

The various re-examination procedures (some created in the America Invents Act) can also take years.

So as we near the one year anniversary of the Alice Corp. case, Congress is currently considering several new pieces of legislation, each of which makes big changes in how patents work (the TROL Act and the PATENT Act).

The risk of making so many changes so rapidly to a system where the results of the changes take years to percolate is that Congress is attempting to fix problems that it (or the courts) may have already fixed.  It is only after five years that we are starting to see the impact of the America Invents Act play out, and it isn't pretty.  According to this report, "the price of an average US patent has dropped about 66% since the institution of the AIA IPR procedure."  The report goes on to note that there are indicators that prices continue to drop, and the predicted ultimate impact of the AIA IPR provisions will be a 77% value drop.

That same article notes that there was little impact from the Alice decision until the past 4-5 months, when decisions from lower courts interpreting Alice were unexpectedly hostile to a range of patents.

If that article is even remotely correct in observing that the America Invents Act cost the economy an amount equal to about 7% of the US GDP, it would be wise and responsible to take a breath and let the changes that have already been implemented play out before changing more things.

What if we have already gone too far, and inventors are starting to abandon research and development efforts in broad areas of invention?

When it comes to the patent system, I'd change an old expression:  Haste wreaks waste.