Technology is changing faster than our patent system can keep up.
“We’re not patenting a new mousetrap,” declares Haas professor of economics Richard Gilbert, “but the idea of putting a mouse in a mousetrap. Today it is possible to patent business methods, software, genetically modified life forms, education methods, and surgical techniques.”
Patents, which grant up to 20 years of exclusive rights to an invention, were designed to encourage and protect the tool-shed inventor. But the patent system as it currently operates is struggling to keep up with an increasingly complex world.
“In our current patent system, patents are relatively easy to obtain, cover a very wide range of ‘inventions,’ have a scope of protection that is limited only by the imagination of the patent attorney, and are often granted for ‘discoveries’ that many in the industry claim are already known, if not well-documented,” Gilbert says. As a result, U.S. patent office examiners are now backlogged as much as four years with applications.
The courts often further muddy the waters. “Decisions do not always consider the broader policy implications as they set precedents,” says Haas economics professor Bronwyn Hall. “The subject matter eligible for patenting has been extended to new technologies (biotechnology) and technologies previously not subject to patent protection (business methods, software). These changes add up to a considerable strengthening of patent-holder rights and broadening of the reach of the patent system.”
Still, software and technology companies don’t feel adequately protected. They argue that the backlog is allowing low-quality patents to be issued—including to “patent trolls” whose primary business is in suing large companies, claiming patent infringement. But large chemical firms and companies like General Electric and 3M that own “simple” products argue that the current patent system works well.
The University of California and other research institutions have a particular stake in the evolution of the U.S. patenting system. Since the majority of university patents are in technology, biotech, and pharmaceuticals, figuring out how to deal with complex industry patents will have a profound impact on the future of research and development at the university level.
