Patent Litigation Situation

The United States Government Accountability Office ("GAO") finally released its study of trends in, and drivers of, U.S. patent litigation on August 22, 2013.  Employing an empirical approach, this study, entitled "INTELLECTUAL PROPERTY - Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality," may serve as an antidote to some of the wilder claims that the patent system has become overwhelmed by patent trolls, vague software patents, and runaway federal courts.  The GAO study concludes as follows:

Public discussion surrounding patent infringement litigation often focuses on the increasing role of NPEs. However, our analysis indicates that regardless of the type of litigant, lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants between 2007 and 2011, and most of the suits brought by PMEs involved software-related patents. This suggests that the focus on the identity of the litigant—rather than the type of patent—may be misplaced. PTO’s recent efforts to work with the software industry to more uniformly define software terminology and make it easier to identify relevant patents and patent owners may strengthen the U.S. patent system. Further, PTO has available internal data on the patent examination process that could be linked to litigation data, and a 2003 National Academies study reported that using these types of data together could provide useful insights into patent quality. Examining the types of patents and issues in dispute represents a potentially valuable opportunity to improve the quality of issued patents and the patent examination process and to further strengthen the U.S. patent system.

In recent years, the patent system has attracted unprecedented attention from governments hoping to determine how best to foster technological innovation.  While proprietary innovation may play an important role, it is equally imperative that governments devote substantial attention to fostering open, user, and collaborative innovation, all of which occur without, or sometimes despite, the patent system, and contribute myriad new goods and services.  Innovation is vitally important to improving human welfare.  Determining which policies, or mixture of policies, best achieve innovation should be a paramount public policy goal.