Is Patent Law Technology-Specific?

Burk, Dan L.; Lemley, Mark A.

doi:10.2139/ssrn.349761

Cited by 55 publications

(38 citation statements)

References 12 publications

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“…For software patents and business methods, it seems the courts have largely eliminated this requirement (Burk 2002, Burk andLemley 2002). 6 In the words of an IBM patent attorney, "[the patent standard] currently being applied in the U.S. invites the patenting of ideas that may have been visualized as desirable but have no foundation in terms of the research or development that may be required to enable their implementation" (Flynn, 2001).…”

Section: A Changing Legal Treatment and Strategic Patenting Industriesmentioning

confidence: 99%

An Empirical Look at Software Patents

Bessen

Hunt

2007

Economics Manag Strategy

264

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Abstract:U.S. legal changes have made it easier to obtain patents on inventions that use software. Software patents have grown rapidly and now comprise 15 percent of all patents. They are acquired primarily by large manufacturing firms in industries known for strategic patenting; only 5 percent belong to software publishers. The very large increase in software patent propensity over time is not adequately explained by changes in R&D investments, employment of computer programmers, or productivity growth. The residual increase in patent propensity is consistent with a sizeable rise in the cost effectiveness of software patents during the 1990s. We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity. This result occurs primarily in industries known for strategic patenting and is difficult to reconcile with the traditional incentive theory of patents.

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Section: A Changing Legal Treatment and Strategic Patenting Industriesmentioning

confidence: 99%

An Empirical Look at Software Patents

Bessen

Hunt

2007

Economics Manag Strategy

264

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“…A number of patentability doctrines might be brought to bear on this problem. First, obviousness doctrine needs to be reformed, preferably by way of a more informed application of the level of skill in the art 72 or, alternatively, by application of new secondary considerations of nonobviousness. 73 Second, a higher disclosure requirement and restrictions on the doctrine of equivalents will help reduce patent scope.…”

Section: Optimal Patent Designmentioning

confidence: 99%

“…We believe that the patent statute is properly designed to facilitate precisely such interpretive activity and that courts both can and should use their common-law rulemaking discretion to engage in deliberate, industry-specific modulation of the statute. 87 The business of innovation is too dynamic for the patent system to function successfully in any other way. Not only do new technologies come into existence and old technologies fade into obscurity, but the innovation profile of industries varies from sector to sector and from time to time.…”

Section: Institutional Competencementioning

confidence: 99%

Designing Optimal Software Patents

Lemley

2016

Preprint

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Patents constitute our foremost policy tool for encouraging innovation.However, because each new technology provides an important input tosubsequent innovation, the exclusive rights conferred by a patent may alsoimpose significant costs upon follow-on innovators. Optimal patent policyshould seek to maximize the patent incentive effect, while minimizingburdens placed on future innovation by tailoring the scope of the patent tothe characteristics of each technological sector affected.In the case of software, recent scholarship has illuminated the innovationprofile of the current industry. Software is characterized by incrementalinnovation, relatively low development costs, and short, volatile productlife cycles. Interoperability and compatibility between complementaryproducts is a major concern, making technical transparency or reverseengineering critical to product development. This suggests a need forrelatively narrow patents that are relatively easy to obtain, and subjectto the exceptions necessary to ensure interoperation and follow-ondevelopment.However, current software patent doctrine bears little relationship to thisindustrial profile. The United States Court of Appeals for the FederalCircuit has set an extremely lax standard of disclosure software patents,resulting in patents scope unconstrained by doctrines of enablement andwritten description. Recent changes that make patent law amenable tosoftware have produced a flood of new applications, allowing firms to adopta patent thicket strategy for licensing leverage. At the same time, FederalCircuit case law suggests that a stringent standard for patentnon-obviousness will be applied to such patents, resulting in relativelyfew valid software patents. Optimal software patent doctrine wouldconstrain scope to deal with patent thicket while lowering thenon-obviousness standard to validate more issued software patents.

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“…171 This lower barrier seems at odds with the modern science of biotechnology. The availability of research tools has made routine the isolation and characterization of biological macromolecules.…”

Section: B Designing Optimal Biotechnology Policymentioning

confidence: 99%