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2.27.07 Tech Policy Summit: Is patent system broken?

Patent reform is Topic One at the Tech Policy Summit in San Jose this week. One camp wants to see software patents flat-out obliterated. From InfoWorld:

"Patents are not a driver of innovation, they are an impediment to innovation," said Mark Lemley, a professor of law at Stanford University Law School, speaking at the summit.

[Often] one company asserts a patent right against another company and forces that company to stop production until the patent issue is resolved. "The patent holdup forces the company to settle for more money than the patent is worth," Lemley said.

Part of the problem is the backup. There's something like a million-application backlog and it routinely takes three years to get final approval. The Patent and Trademark Office plans to hire 1,200 more examiners.

But don't look to USPTO to dismantle the patent system. At ZDNet, Dan Farber reports that a top official said the patent system is far from broken. John Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, said the idea that patents are "fundamentally broken" is just plain wrong.

"I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S," Dudas said. "It's a proven system, over 200 years old. The Supreme Court, Congress and policy makers are involved [in cases and legal reforms] not because the system is broken. It's not perfect, and we should be having the debate on how to improve."

Dudas didn't agree that the office grants too many unworthy patents, saying USPTO currently has the lower error rate in years. He said the biggest threat to patents is the age-old law of obviousness, which says that inventions must be not only "novel" but also "nonobvious." What nonobvious means is a particularly subjective question and the Supreme Court recently heard oral arguments on that issue in the case of KSR v Teleflex (PDF).

Yesterday, Farber reported, Congressman Howard Berman (D-CA) said that he and Senator Patrick Leahy (D-VT) are working on a patent reform bill.

Berman said he hopes that patent reform will become a leadership priority on a bipartisan basis in both houses, with a goal of developer faster and less expensive ways to determine the validity of patents.

Finally, this bit of richness: Taraneh Maghame of the Patent Troll Lobby (er, the Innovation Alliance, a name that should signal warning lights), said, "Not all of the tech industry is behind patent reform." InfoWorld explains that, "the Innovation Alliance was recently formed to protect companies that patent technology but don't manufacture it."