Current Issues in Patent Law and Policy
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CURRENT ISSUES IN PATENT LAW AND POLICY
MICHAEL J. MEURER*
Patent law and policy have received a surprising amount of
attention from courts and policymakers in recent years.' This
attention is warranted because innovation policy is critical in
determining the pace of innovation and the rate of economic
growth. The reform proposals pending before Congress are
motivated by widespread reports of abusive patent assertions
and fears that patents sometimes stifle innovation.2
I favor most of the pending reforms and worry that our pa-
tent system, on balance, discourages innovation. But I part
company from most reform proponents who focus on harms
caused by the frivolous patent litigation mounted by many
non-practicing entities (NPEs).3 Instead, I want to focus on
deeper flaws in the U.S. patent system that existed before NPEs
became very active and that continue today.
In our book Patent Failure,4 James Bessen and I empirically
demonstrated that problems in our patent system predated the
flood of NPE litigation that began around 2005.5 We showed
* Professor, Boston University School of Law; J.D. and Ph.D., University of Min-
nesota; S.B., Massachusetts Institute of Technology. This Essay was adapted from
remarks given at the 2015 Federalist Society National Student Symposium held at
the University of Chicago.
1. See, e.g., Beriont v. GTE Laboratories, Inc., 535 F. App'x 919 (Fed. Cir. 2013);
Promega Corp. v. Life Techs. Corp., 674 F.3d 1352 (Fed. Cir. 2012); Steve Lohr,
With Patent Litigation Surging, Creators Turn to Washington for Help, N.Y. TIMES
(Apr. 29, 2015), http://www.nytimes.com/2015/04/30/technology/with-patent-
litigation-surging-creators-tum-to-washington-for-help.html?_r=0
[http://perma.cc/3W46-SFPP].
2. See Lohr, supra note 1.
3. See, e.g., Adam L. Massaro, Phased Discovery in Patent Litigation: A Powerful
Tool Within the Existing Litigation Framework for Combating Actions by Non-Practicing
Entities, NAT'L L. REV. (Oct. 31, 2014), http://www.natlawreview.com/
article/phased-discovery-patent-litigation-powerful-tool-within-existing-
litigation-framewor [http://perma.cc/69JA-HR4Y].
4. JAMES BESSEN & MICHAEL J. MEURER, PATENT FAILURE: How JUDGES, BU-
REAUCRATS, AND LAWYERS PUT INNOVATORS AT RISK (2008).
5. Id. at 144.](ViewImageLocal?handle=hein.journals/hjlpp39&div=10&collection=&method=preview&ext=.png&size=3)
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