39 Harv. J. L. & Pub. Pol'y 71 (2016)
Current Issues in Patent Law and Policy

handle is hein.journals/hjlpp39 and id is 77 raw text is: 



    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.

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