Advancing a Free Society

Patently Bad Policy

Wednesday, November 16, 2011

Fortunately, it is the rare occasion when we have, on the one hand, many good reasons to expect a bad outcome from our taking a particular set of next steps but, on the other, a great demonstrated resolve to take those steps anyway.  Unfortunately, today’s patent system represents one of those rare situations.

In September, after several months of thin bipartisan cooperation that was eclipsed from popular attention by the cacophony of discord over larger issues like the budget, Congress and the president managed to pass and sign into law the America Invents Act—the largest overhaul to our patent system since the 1952 Patent Act.  Then, in its new term launched at the beginning of October, the Supreme Court will be deciding two big patent cases—Hyatt v. Kappos and Mayo v. Prometheus—that will likely bring some of the new statute’s worse features into action. 

While our own recent history gives us great reasons to confidently predict the significant harm that these cases and this statute will bring to our patent system in particular and our broader economy in general, as formal matters, some wrinkles in how the fabric of the Court’s case law has evolved over the past decade or so are likely to make the actual economic impact largely irrelevant to the specific legal arguments placed before the Court.

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