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The problem with making it harder to enforce patents is that doing so reduces incentives for innovation. A somewhat different approach involves expanding on the AIA’s efforts to improve patent quality. For example, it is generally agreed that the Patent Office has been too lax in issuing business method patents and that such patents are frequently misused by patent trolls. In response, the AIA created the Covered Business Method program, which allows defendants in infringement suits to seek expedited Patent Office review of business method patents involving “financial products or services.” Reps. Judy Chu, D-Calif., and Darrell Issa, R-Calif., and Sen. Charles E. Schumer, D-N.Y., have now introduced bills to expand the CBM to all business method patents.
Unlike some of the other reforms being considered, the CBM doesn’t raise the costs of enforcing legitimate patents — it just makes it easier to invalidate bad ones. And it would have virtually no effect on patents for “real” innovations like pharmaceuticals and computer chips.
Striking the right balance between innovation and litigation in patent reform is a difficult task, and many reforms — however, necessary — involve trade-offs that will be difficult to achieve, but there is no apparent downside in making it easier to throw out patents that should never have been issued in the first place.
Jeffrey A. Eisenach is a visiting scholar at the American Enterprise Institute and is director of its new Center for Internet, Communications, and Technology Policy.