Debate Continues Over Patent Reform

The Federalist Society recently hosted a panel "Is the Patent System Working or Broken?" at George Mason University School of Law featuring retired Federal Circuit Judges Paul Michel and Arthur Gajarsa and Seventh Circuit Judge Richard Posner, with D.C. Circuit Judge Douglas Ginsburg moderating the panel.  Although the America Invents Act ("AIA") was intended to provide sweeping reforms to the patent system in the United States, it is clear there is still much to be desired.  Judge Posner was critical of current patent laws, pointing to the high number of patents granted for minor software innovations, arguing that these innovations would occur even without a patent because there are little upfront costs or investment that need to be recouped.  He believes the amount of frivolous patent litigation would be curbed if fewer patents were granted for a shorter period of time and there was no presumption of validity.  Judges Michel and Gajarsa agreed further reforms were needed, but rejected Judge Posner's idea that patents should only be granted for the purpose of recouping investment costs and pointed out that the 20-year patent term was required under international treaties.  Judge Gajarsa further argued that the new post-grant review procedures under the AIA should help resolve the issue of the USPTO granting patents that should never have been issued in the first instance.  The debate over patent reform will certainly continue as the AIA is tested over this year.

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