Originally published in The Hill by Robert L. Stoll.
Our patent system has spurred American innovation for more than 200 years and led to strong economic growth and job creation. Unfortunately, the patent system has come under unfounded attacks that are often cited to justify upending the patent system. These attacks have been disproven by recent studies.
A recent white paper by David Kappos and Aaron Cooper debunks the oldest and often repeated criticism that software patents create insurmountable barriers to market entry and should be eliminated. Throughout their paper, Kappos and Cooper reveal mistakes in recent studies that aim to discount the importance of software patents to innovation. They also point to the success of new companies like Facebook, Twitter, Snapchat and Venmo in disrupting industry players and achieving astronomical success. The rise of these cutting-edge companies is evidence itself that software patents are creating new economic opportunities.
The Kappos-Cooper paper also references a study by the United States Patent and Trademark Office demonstrating that the vast majority of the software patents involved in the so-called “smartphone wars” were held to be valid by courts. This study refutes earlier research based on Internet business method patents, which actually have little to do with software technology, but had been used as evidence that a very small percentage of software patent owners won their cases in court. The argument was floated that if the courts were so frequently finding them invalid, then these patents relating to emerging technologies should not be granted in the first place. The fallacy of extrapolating from Internet business method patents to all software patents was exploited to influence policymakers and is demonstrative of the conflicting factors and parties seeking to change the patent system for parochial advantage.
What is clear is the need for comprehensive studies of the U.S. patent system and its impact in the creation of economic growth and innovation. Different studies have been used to suggest entirely different remedies, but none of them credibly say patents should be weakened, let alone abandoned. By focusing on discrete parts of the system using different parameters, we are not getting a complete picture of which aspects of the patent system are spurring innovation and which may need retooling.
While the evidence to date supports the position that the U.S. patent system drives the innovative culture that our country is known for, we need more information before we undertake efforts to improve it. Proposed changes need to be closely evaluated as to their impact on behavior and their effects on the system as a whole. Modifying different parts of the system at the same time could have dire unintended consequences for innovation in the United States. We should only make changes to what has functioned well for over 200 years after comprehensive analysis as to the likely effects of those changes.
Stoll is a partner and co-chair of the intellectual property group at Drinker Biddle & Reath and a former commissioner for patents at the United States Patent and Trademark Office.