Expansive Patent Protections hurt competition and business --- patent thickets

To begin with, the general sentiment is that the patent rights afforded to patent owners are expanding, while standards to grant patents are being lowered, which has a negative impact on competition and innovation. 15Link to the text of the note As put by Harvard professor John Lerner during his testimony before the House subcommittee: "We've moved toward this litigious point over the past two decades as the courts strengthened the rights of patent holders while the [*22] standards to grant patents were weakened. It's a 'perfect storm,' a complex and intensifying combination of factors that increasingly makes the patent system a hindrance rather than a spur to innovation." 16Link to the text of the note Scholars also argue that overly expansive patent protection weakens innovation by unnecessarily shrinking the public domain and deterring innovative activity by others. 17Link to the text of the note

Furthermore, there are widespread and growing concerns about the patent application process. The notion is that the PTO issues far too many "questionable" patents that are unlikely to be found valid when subject to the same scrutiny patents face during patent litigation. 18Link to the text of the note As Shapiro and Lemley have pointed out:

There are good reasons to doubt the efficiency of a system for granting patents under which 1) patents differ greatly in their commercial significance and value; 2) patent applicants are uncertain about the value of their ideas, but have far superior information to examiners; 3) patent applicants often have superior information as well about prior art, but are under no obligation to conduct a search for the relevant prior art; 4) patent applicants can persist repeatedly through the continuation process in seeking to have certain claims accepted by patent examiners; 5) the burden of proof falls upon the PTO to explain why a patent application will not be granted; and 6) patent examiners are faced with a flood of applications and have little time to devote to each one. 19Link to the text of the note

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The inefficiencies of the patent application process coupled with overprotection and expansion of patent rights have contributed to another problem: the skyrocketing number of issued patents. 20Link to the text of the note At first, it might seem that the number of issued patents does not necessarily have negative implications on innovation and competition. After all, an increase in the number of patents issued corresponds with innovation, right? Ideally yes, but in reality that is not the case because a large amount of patents have little or no value, or the innovation embodying the patent is not even in use for different reasons. 21Link to the text of the note A second look reveals that the skyrocketing number of issued patents can have very negative effects on competition and innovation. Some commentators point out that the "patent explosion could injure competition and impede innovation by making it more difficult for rival inventors to sell competing products." 22Link to the text of the note According to Professor Carl Shapiro, a "patent thicket" has formed, which he describes as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology." 23Link to the text of the note Firms in certain industries are said to fear that it is "all too easy" to infringe another patent accidentally and thereby risk liability. 24Link to the text of the note The testimony of an executive from Texas Instruments illustrates why: