Innovation
and Its Discontents: How Our Broken Patent
System Is Endangering Innovation and Progress,
and What to Do About It
by Adam B. Jaffe and Josh Lerner
Princeton University Press, Princeton,
New Jersey,2004
256 pp., illus. 14 b/w. Trade, $29.95
ISBN: 0-691-11725-X.
Reviewed by Zainub Verjee
Ottawa, ON, Canada, K1R 7X1
bigvee@sympatico.ca
A timely and concise book that presents
a comprehensive and convincing argument
about the not so explicit changes in the
United States of Americas laws beginning
in 1982 that have broken a patent system
that delivered till then. Primarily this
book could be slated as a discussion between
economist and lawyers, and yet it is very
effective for a lay reader; where the
economists, i.e. the authors, squarely
lay the blame on the patent lawyers. Nevertheless,
the authors analysis offers useful
insight for anyone with research interests
in this area as to how to make strategic
interjection given the take over of the
process of patenting by special interests
and their lawyers (p.23).
This new book by Adam Jaffe of Brandeis
University and Josh Lerner of Harvard
Business School argue a strong case as
to how the current (read since 1982) the
patent regime has failed to deliver the
promise of America's innovation engine.
It further offers prescription of certain
strategies to make the necessary corrections
to the problems at the US Patent and Trademark
Office.
In one line the argument is about the
clogging up of system by virtue of perky
patent lawsuits and its economic fallout
(p.150) that discourages innovation process.
One of the key pressures that the authors
identify is the diversification of the
patent revenue to other governmental expenses.
One of the key chapters is the fourth
one where the authors focus on the Court
of Appeals for the Federal Circuit (CAFC),
the appellate patent specialty court with
the most influence on the patent system.
They discuss the CAFCs role in increasing
patent strength via broadening the list
of topics that can be patented, restriction
on challenges to validity of patent and
offer more effective solutions.
The authors have tended to be more communal
while offering solutions. They prefer
to offer a peer scrutiny as a better mechanism
than an individual expertise in the evaluation
of patents. Further they want the other
stake-holders in this community of innovators,
like scientists and businessmen, to weigh
in about any issue around the novelty
of a new invention. There is an interesting
suggestion made regarding the place of
challenge to a patent. The authors moot
such a place should be primarily be a
patent office and not necessarily be discussed
in front of a jury, which is not necessarily
equipped and have a nuanced understanding
imperative for such an evaluation. They
do make another point about the way to
prevent useless and perky tactics is to
make the challenger pay for the costs
if s/he lost. This all is summed up in
chapters six and seven where an examination
of previous failure and strategize for
future reform. The author suggest, in
addition to above, recouping more resources
for patent examination, the establishing
of a pre-grant opposition and better deployment
of special masters/knowledgeable professional
to advise judges on complex topic and
give judges more powers.
In regards to suggestions as to how the
system could be improved, one will have
to give the authors the benefit
of doubt given the scope of the topic
and limitations that a 200 odd page book
offers. One notices that they are steadfast
in articulating faith in traditional patent
system and not talking about undoing of
the change in appeals court jurisdiction,
which according to them is one of the
key factor for downwards trend in innovation.
Not everyone is going to take their diagnosis
and prescription on a face value. That
is the paradox!
Anyway one can fairly say that the authors
largely succeed in putting across their
key argument. They employ interesting
strategies and tools to keep the tone
of the book light despite dealing with
such a dry and tedious subject. Anecdotal
tone, interesting snippets with a sprinkling
of a historical narrative and proposed
reforms pack up the just over 200 page
book with a good dose of footnotes and
a reasonable index, it makes for an engaging
and a quick simple read.