Bessen, Hunt, Maskus, Jaffe and Lerner

LBE received a not entirely friendly email from one Bob Hunt on August 8 pertaining to a post on IPFrontline about the upcoming book by Bessen.

The name sounded familiar and indeed LBE soon remembered why: the so-called Bessen/Hunt technique for identifying software patents, which is mentioned in wikipedia as arising from James Bessen and Robert M. Hunt. Yes, Hunt is an economist, who has co-authored with Bessen (Journal of Economics and Management Strategy (2007)) and who separately wrote on the theme "when do more patents reduce R&D."

And just when it appeared that we were turning the corner on Jaffe and Lerner's fallacies, it appears that there will be a whole new front opening up on patents reducing R&D and not being good for anybody (except drug companies).

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Separately, recall the Maskus article on patent reform? Recall also the IPFrontline post by Wegner "Second Window" Patent Reform; the Ghost of Maskus, which began

Immediate institution of a system of prompt, post-grant review with an appropriate "second window" is the central, core patent reform that is needed as soon as possible, perhaps under a new "CCPA", must be considered a priority both for earliest regulatory reforms as well as complementary patent legislation. It is whistling in the dark to propose other patent reforms until there is resolution of the "second window" issue.

and which concluded:

For more than twenty years, the United States has increasingly strengthened the exclusive rights of inventors at the expense of those who need access to new technologies, while patents have been granted too easily and written too broadly. These policies reflect the misguided belief that stronger[patent] rights will always expand incentives for innovation. Instead, the patent system raises roadblocks for licensing and cumulative innovation, becoming a threat to competitiveness and growth.

The dogmatic assertion that 'more is better' also drives U.S. trade policy in setting global patent rules. The global trading system cannot thrive under a ‘one size fits all’ approach to any major regulatory regime, including patents. Countries need the flexibility provided under TRIPS—the multilaterally agreed regime—to manage and support their own innovation and competition policies. Pushing a high-level harmonization agenda has not been fruitful but has generated resentment in trading partners and raises risks for the future of U.S. bilateral trade policy.

Thus, the fundamental approach of protecting low-quality patents with ever-stronger domestic rights, while pressing for more harmonized global patent standards, should give way to a framework that emphasizes flexibility and gets the incentives for innovation right. On the domestic front, this requires significant reforms in patent law and judicial practice. On the international front, a willingness to relax demands for harmonization and TRIPS-plus standards should be combined with greater assistance for reforms and an insistence on effective enforcement in major developing countries. This two-pronged reformation in the stance of domestic and international patent policy would move a long way toward restoring sense to the patent system and expanding confidence that true innovation will be rewarded, wherever it occurs.

See also

http://ipbiz.blogspot.com/2007/01/more-on-maskus-paper-on-patent-reform.html

http://ipbiz.blogspot.com/2006/12/leahy-talks-about-patent-reform-at.html

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Also note the post on IPFrontline:

Patent Grant Rate Lower Than Many Academics Think