The United States patent system has become sand rather than lubricant in
the wheels of American progress. Such is the premise behind this
provocative and timely book by two of the nation's leading experts on
patents and economic innovation.
Innovation and Its Discontents tells the story of how recent changes
in patenting--an institutional process that was created to nurture
innovation--have wreaked havoc on innovators, businesses, and economic
productivity. Jaffe and Lerner, who have spent the past two decades
studying the patent system, show how legal changes initiated in the
1980s converted the system from a stimulator of innovation to a creator
of litigation and uncertainty that threatens the innovation process
itself.
In one telling vignette, Jaffe and Lerner cite a patent litigation
campaign brought by a a semi-conductor chip designer that claims control
of an entire category of computer memory chips. The firm's claims are
based on a modest 15-year old invention, whose scope and influenced were
broadened by secretly manipulating an industry-wide cooperative
standard-setting body.
Such cases are largely the result of two changes in the patent climate,
Jaffe and Lerner contend. First, new laws have made it easier for
businesses and inventors to secure patents on products of all kinds, and
second, the laws have tilted the table to favor patent holders, no
matter how tenuous their claims.
After analyzing the economic incentives created by the current policies,
Jaffe and Lerner suggest a three-pronged solution for restoring the
patent system: create incentives to motivate parties who have
information about the novelty of a patent; provide multiple levels of
patent review; and replace juries with judges and special masters to
preside over certain aspects of infringement cases.
Well-argued and engagingly written, Innovation and Its Discontents
offers a fresh approach for enhancing both the nation's creativity and
its economic growth.
