Patent system is resilient

1. Good: The Sky Isn't Falling.-First, the good news: we are unlikely to break the patent system, whether by passing patent reform legislation or by failing to pass it. Much of the academic and policy debate over patent law in the past twenty years has focused on the relative dangers of overprotection and underprotection. Both sides have worried that changes to the patent system will kill the goose that laid the golden egg, retarding, rather than promoting, innovation. Those who worry about overprotection fear that patent trolls will impose a tax on true innovators and that too many strong patent rights will make cumulative innovation and bringing products to market harder.23 8 Those who (more recently) worry about underprotection tout the U.S. patent system as the primary reason for our national lead in innovation, and fear that weakening that system will discourage invention and prevent good ideas from getting to market.239

The evidence, however, suggests that both of these concerns are overblown. Radical changes in both patent substance and procedure that strengthened the hand of patent owners during the 1980s and 1990s and brought us a deluge of patent trolls didn't break the patent system, worries about the patent crisis notwithstanding. Indeed, they didn't seem to have a significant causal effect on patent applications, patent grants, patent lawsuits, or patent judgments.

By the same token, the more recent reforms to the patent system weakening patent rights will also not break the patent system. Indeed, those reforms too don't seem to have much changed the ever-increasing number of patent applications, patent grants, or patent lawsuits. Nor have they reduced patentees' win rate in court or the damage awards they receive when they do win. We don't, of course, know whether the courts and Congress will continue to cut back on the power of patent owners. There is some reason to think the pendulum is slowing down.240 But previous changes to the substance of patent law haven't derailed the patent system. Indeed, they haven't even changed its momentum very much. The same is likely to be true for the foreseeable future. The good news, then, is that the sky isn't falling. We aren't about to destroy the patent system or halt innovation.