The Overstated Case against the United States Patent System?

Theodore H. Davis Jr.

©2016. Published in Landslide, Vol. 8, No. 3, January/February 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Criticism of the United States patent system has become a veritable parlor game in recent years. For example, The Economist has issued a thinly veiled call for the abolition of utility patents altogether, subject only to “problems in terms of the ethics of property rights.”1 Apparently unrestrained by similar ethical constraints, a Federal Reserve Bank of St. Louis research paper concludes that “the best solution is to abolish patents entirely through strong constitutional measures and to find other legislative instruments, less open to lobbying and rent-seeking, to foster innovation whenever there is clear evidence that laissez-faire under-supplies it.”2 Much of this criticism targets non-practicing entities (NPEs), known more popularly as “patent trolls.”

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