Saturday, June 30, 2007

Bad patent litigators, not bad patents, driving Supreme Court?

Although an AP article by Chris Rugaber suggests the Supreme Court is business-friendly, two quotes within the article suggest that the true driver of the Supreme Court (as to patent issues) may be concern with lawyer-driven litigation:

Thomas Goldstein mentions that the justices share the concern of many business groups that excessive litigation places a burden on business and the US economy.

Roy T. Englert is quoted: "The entire Supreme Court has a mistrust of lawyer-driven litigation. The justices don't see real injured people bringing claims, but lawyers seeking settlements."

Applying this view to patent reform, it's certainly NOT bad patents that are at issue, or even bad litigations, but rather the perception that one has lawyer-driven litigation.

This is a point that Jaffe and Lerner have hammered.

LBE had written in 2005:

Adam B. Jaffe and Josh Lerner have stated that "Increasingly, the firm with best lawyers or the greatest willingness to risk litigation wins the innovation wars --rather than the company with the brightest scientists or the most original, valuable ideas." Jaffe and Lerner further assert "Whatever the solutions, when issues of US patent policy are considered by the courts, the Congress, and the executive branch, you can be sure that the opinions of patent lawyers and patent holders will be heard. While their arguments will often be couched in terms of the public interest, at bottom their focus will be on improving their own profits and livelihoods, not on designing a patent system to foster the overall rate of innovation."


In a review of the Jaffe/Lerner book, Brad Stone (Newsweek Web, Oct. 13, 2004) wrote in Plain Text: Patent Problems: But [the Forgent lawsuit] is evidence of a system out of control. The patent process seems to incentivize pinstriped lawyers instead of white-smocked inventors. A litany of smaller firms such as Forgent, The SCO Group in Lindon, Utah, and Eolas Technologies of Chicago have become what their critics call "trolls"--companies with ambiguous intellectual-property claims whose only hope to enrich their bottom line is to strike it rich in court. … The proliferation of patent squabbles like the Forgent case are swallowing much of the time, money and risk-taking of America's technology firms. Patent law was meant to enable innovation, not discourage it.

Thus, although Jaffe and Lerner may not understand patent quality, or even prior art, they have a winner in characterizing, and selling, the patent wars as lawyer fights. Ironically, although the value, as scholarship, of Innovation and Its Discontents is marginal, it was out-of-this-world as a political argument. It's truly sad that most legal academics did not understand the difference.

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