The claim that there is a “patent litigation explosion” is a myth, but there’s a related patent litigation myth that has proven cantankerously resilient in the patent policy debates — there’s an “explosion” of patent-owners racing to the International Trade Commission (ITC) who are obtaining exclusion orders against infringers.
Unfortunately, the complaints today about today’s patent litigation crisis arise more from unchecked intuitions about what feels like a bad situation, from unrealistic assumptions about how much certainty we can achieve in the patent system, and from emotionally-compelling anecdotes about innovators running into trouble with patents.
The New York Times set hearts aflutter in the IP world yesterday with its hit piece on patents in the high-tech industry.
The historical patent litigation rates are significant because they also include the same “patent wars” that we are experiencing with the “smart phone war.”
It’s time to bring objectivity and a historical-based perspective to public policy discussions about software patents and the role of property rights in innovation.
The antitrust laws are thus a palpably unjust legal doctrine, and respect for individual rights demands that the District Court’s judgment against Microsoft be reversed and the antitrust laws held invalid and unconstitutional.