Mr. Goldstone has taken on quite the task. To get started he says federal courts are now awash in patent infringement suits that they seem to have little real notion of how to resolve. Referring to Alice v. CLS Bank, it is not that clear he isn't right, but generally federal district courts know how to resolve cases. I think it is more a uncertainty problem as the Federal Circuit and Supreme Court are not shy to express different notions on how to resolve cases.
Referring back to the article, Mr. Goldstone says it should be instructive to see how the patent system did not work that well with regard to a watershed innovation: flight. Yes, the Wright brothers did seem to lose their way in seeking patent royalties from "everyone." But it appears the real problem is their technology was inferior. And the Wright brother's situation gets overblown because it seems to say tech companies should "quit patent wrangling and get back to innovation" as "Orville Wright died penniless after attending too many depositions and micromanaging patent litigation." Never mind that they brought an inferior solution to the marketplace, it's about the risks of focusing on patent enforcement.
On the other hand, the article highlights an important point that isn't typically realized: the non-infringement defense is a potent one. Stanford University law professor Mark Lemley stated in Does Familiarity Breed Contempt Among Judges Deciding Patent Cases: "We find that judges with more patent experience are less likely to rule for patentees on infringement, though not on validity. Familiarity, it seems, breeds contempt – not necessarily of patents, but of the breadth patentees sometimes claim for their legal rights."
Copyright © 2014 Robert Moll. All rights reserved.
