How to Fix Our Broken Patent System

The patent system is in crisis. Patents—particularly software patents—have become a tool for intimidation and expensive litigation, chilling the very innovation the patent system was supposed to encourage.

Over 16,500 people have responded to our Defend Innovation project we launched in June 2012, sharing their stories, expertise, and alternative approaches to the status quo. (View our old proposals to fix the system here.)

Since then, patent reform has become a top priority for both Congress and the White House. Many longstanding issues of patent quality and litigation abuse have also been clarified in recent rulings by the Supreme Court.

But the work of fixing the patent system is far from complete. To help inform that effort, we have synthesized a huge corpus of material about the current patent system—comments and criticism from software engineers and lawyers, news stories and anecdotes, legislative efforts and court cases—with our own experience in the patent space.

The result is Defend Innovation: How to Fix Our Broken Patent System, a whitepaper providing a comprehensive view of the issues plaguing the patent system today, as well as a series of solutions that Congress, the Patent Office, the courts, and companies can implement.

Click here to read Defend Innovation [PDF]

Our proposed fixes include:

  • Passing measures that focus on strengthening patent quality—such as reaffirming limits on functional claiming and ending continuation abuse—as well as implementing inexpensive, efficient tools to challenge the validity of issued patents.
  • Passing a comprehensive patent litigation reform bill, such as the Innovation Act, that levels the playing field and removes systemic advantages for patent trolls.
  • Ending the Federal Circuit’s exclusive jurisdiction over patent cases, so that other appellate courts have a chance to offer alternative approaches and legal interpretations.
  • Passing meaningful reform to discourage bad actors from sending frivolous demand letters.
  • Putting a stop to “forum shopping,” the ability for patent owners to file suit in distant favorable districts that have minimal ties to defendant.
  • Combining legislative reforms with action by the Patent Office to modernize its procedures (such as its use of online resources and databases) and promote patent clarity. The courts, for their part, could seek to limit exorbitant damages awards.
  • Encouraging companies to adopt alternative patent licensing schemes that prevent patents from being abused by trolls.

Fixing the current patent mess will require concerted action, but it can be done. Now more than ever, there is both the need and the will for real and lasting reform. We hope this paper will help.

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