In recent years, business leaders, policymakers, and inventors have complained to the media and to Congress that today's patent system stifles innovation instead of fostering it. But like the infamous patent on the peanut butter and jelly sandwich, much of the cited evidence about the patent system is pure anecdote--making realistic policy formation difficult. Is the patent system fundamentally broken, or can it be fixed with a few modest reforms? Moving beyond rhetoric, Patent Failure provides the first authoritative and comprehensive look at the economic performance of patents in forty years. James Bessen and Michael Meurer ask whether patents work well as property rights, and, if not, what institutional and legal reforms are necessary to make the patent system more effective. Patent Failure presents a wide range of empirical evidence from history, law, and economics. The book's findings are stark and conclusive. While patents do provide incentives to invest in research, development, and commercialization, for most businesses today, patents fail to provide predictable property rights. Instead, they produce costly disputes and excessive litigation that outweigh positive incentives. Only in some sectors, such as the pharmaceutical industry, do patents act as advertised, with their benefits outweighing the related costs. By showing how the patent system has fallen short in providing predictable legal boundaries, Patent Failure serves as a call for change in institutions and laws. There are no simple solutions, but Bessen and Meurer's reform proposals need to be heard. The health and competitiveness of the nation's economy depend on it.

Presenting a wide range of empirical evidence from history, law, and economics, this text is an authoritative and comprehensive look at the economic performance of patents. It asks whether patents work well as property rights, and, if not, what institutional and legal reforms are necessary to make the patent system more effective.

This essay reviews and extends the arguments that James Bessen and Michael J. Meurer present in Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Patent Failure raises the bar for contributions to the ongoing debates over both the need for patent reform and the type of patent reform that is needed. Based on an innovative and elegant empirical analysis, Bessen and Meurer defend the counterintuitive position that, outside of the chemical and pharmaceutical industries, the contemporary patent regime functions as a tax on innovation. In other words, taking a world without any patent protection at all as the baseline, they argue that patents decrease the welfare of the very innovating firms that are today seeking and obtaining patents. To explain this phenomenon, they point to the poor notice of the existence and scope of patent rights that the contemporary patent regime provides to the public. Poor notice, in turn, means that innovating firms bear an unavoidable risk of infringing other innovating firms' patents and bearing the costs of litigation. Bessen and Meurer simply argue that the average benefit that an innovating firm receives from owning its own patents is smaller than the average cost it incurs to fend of allegations of patent infringement. After summarizing and critiquing the book's principal arguments, this Essay extends Bessen and Meurer's analysis by exploring the import of their findings for legal scholarship on property failures. Although they do not themselves articulate this point, Bessen and Meurer enrich the literature on property failures by positing a new model for property failure: a tragedy of property. A tragedy of property is the true mirror image of the tragedy of the commons: it is a rush to ruin that is caused, rather than remedied, by property. An innovating firm receives a private welfare benefit from obtaining and enforcing each additional patent. However, each innovator's self-interested decision to increase his or her own "herd" of patents decreases the welfare of innovators as a group because the inter-innovator externalities of patents outweigh the benefits that patent owners internalize. A tragedy of the commons results from the inefficient, externality-generating overuse of a rival, scarce resource. A tragedy of property results from the inefficient, externality-generating overuse of the institution of property itself.

The paper is from a 2008 Symposium at the University of Georgia devoted to the book by James Bessen and Michael J. Meurer, "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators At Risk". The paper provides an Overall Comment as to the conclusions of the book, Topical Comments as to specific items in the book, and then concludes with the author's proposals for Patent Reform to Foster Innovation.The Overall Comment notes that the conclusions of the Bessen-Meurer book are sound. The U.S. patent system is not working for innovators or consumers. But the problems of the U.S. patent system go beyond the "imperfect notice" problem noted by the book's authors. Not addressed by the book is the question of to what extent, if any, is patent ownership essential for innovation. References cited in the book suggest that patents owned by innovators are only infrequently important for innovation, and patents owned by others than the innovator can be impediments to innovation. The policy suggestion that flows the foregoing is that a patent system that fosters innovation requires high standards for patentability that result in fewer marginal patents to impede innovation.The Topical Comments note, among other things, that the Court of Appeals for the Federal Circuit was established (in 1982) despite the recommendation against a specialist patent court by the Hruska Commission in 1975, and that it almost immediately lowered the standards for patentability in the United States despite assurances to the contrary.The Two Fundamental Patent Reforms proposed by the author are (1) restoration to patent law of a self-correcting structure like that which applies to most other areas of federal law, and (2) enabling the United States Patent & Trademark Office to obtain final decisions as to the patentability of applications it has examined. The former reform can be accomplished by adopting the Nard-Duffy proposal for parallel appellate tracks for patent appeals or by restoring appellate jurisdiction in patent infringement cases to the regular courts of appeals. The latter reform can be achieved by abolishing all forms of continuing patent applications except for divisional applications filed pursuant to a 35 U.S.C. § 121 requirement for restriction so as to eliminate the ability of patent applicants to evade such final decisions.

Whether you're a patent examiner, patent attorney, commercial patent searcher, patent liaison, IP librarian, law professor, or competitive intelligence analyst, you'll find Patent Searching: Tools and Techniques to be just the guide you have been waiting for, with a range of approaches to patent searching that will be useful to you regardless of your technical expertise or role in the intellectual property community.

The U.S. patent system is in an accelerating race with human ingenuity and investments in innovation. In many respects the system has responded with admirable flexibility, but the strain of continual technological change and the greater importance ascribed to patents in a knowledge economy are exposing weaknesses including questionable patent quality, rising transaction costs, impediments to the dissemination of information through patents, and international inconsistencies. A panel including a mix of legal expertise, economists, technologists, and university and corporate officials recommends significant changes in the way the patent system operates. A Patent System for the 21st Century urges creation of a mechanism for post-grant challenges to newly issued patents, reinvigoration of the non-obviousness standard to quality for a patent, strengthening of the U.S. Patent and Trademark Office, simplified and less costly litigation, harmonization of the U.S., European, and Japanese examination process, and protection of some research from patent infringement liability.

Pharmaceutical and Biotech Patent Law provides you with the legal, scientific, and technical information you need to help clients obtain, defend, and challenge patents in these important business areas. This practical guide shows you how to craft problem-free patent applications, including how to partner with the government to bring patented inventions quickly to the marketplace - invalidate competitors' patents by proving that they fail to meet key requirements - protect against various forms of patent infringement - and successfully rebut charges of infringement. It includes detailed checklists that help you resolve thorny patent problems in the complex pharmaceutical and biotech fields, and is regularly updated to reflect Federal Circuit rulings and other significant court decisions.