President Obama seems to be catering to big business again, duped into attacking patent aggregators as impediments to progress. There is an underappreciated flip side, and that is that the patent reforms so far enacted at the behest of Obama’s team actually aggravate the problem by making patent enforcement even more expensive so that such aggregators are effectively the only option for many small businesses seeking to obtain redress for blatant infringement by big business. The software industry certainly has a legitimate beef due to the rapid pace of new inventions and the inability of the USPTO to keep pace, which leads to long pendencies and issuance of highly questionable patents that often serve more to slow down progress and reward marginal advances. We have for more than two decades here been advocating that the US move to a patent registration system with an opposition period and with PTO adjudication of validity and infringement issues so that this situation can be eliminated, patents issue rapidly, oppositions come quickly and disputes are decided quickly and more reliably by the most qualified experts (patent examiners). Once the validity and infringement issues are resolved, the remainder of the patent infringement issues generally follow and settlement comes quickly. If the patent is held invalid or not infringed, the accused infringer goes on about its business without further interruption or delay. If the patent is held valid and infringed, the accused infringer either stops or negotiates a license to or purchase of the patent on the one hand or sets about to design around the patent to create a non-infringing alternative. Such design around activities unquestionably promote the progress of the useful arts, as those designing around patents naturally want to create something not just different, but something better so that they can turn the tables, advertize advantages of their new design, and get the patent on that new workaround that stops the patentee from making, using or selling the improved workaround.
We encourage further patent reform, but reform that builds on the reforms by recognizing the need for speed in patent issuance and the need for speed in patent conflict resolution so that certainty can be brought more quickly in order to allow businesses and individuals to invest with more confidence in American ingenuity and to devote resources currently spent litigating patents on R&D instead. I like us patent lawyers getting rich, but I would prefer inventors getting rich instead.