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Today’s patent crisis is a product of a half-century of policy choices that have left us with the current system.  These legislative, regulatory and legal choices are at the root of the challenges faced today.

These choices started with the 1952 Patent Act, which was presented to the U.S. Congress as a mere ‘codification’ of patent law.   However, according to its principal drafter, it “was written basically . . . by patent lawyers drawn from the Patent Office, from industry, from private practice, and from some government departments.”  Under the Act, an applicant is entitled to a patent; the burden is on the examiner to prove that the entitlement should not be granted.

Thirty years later, Congress acceded to the patent bar’s demand to make patent law more uniform by establishing a new appellate court to hear all patent appeals.  Initially populated by patent lawyers, the Court of Appeals for the Federal Circuit has made patents more powerful, easier to get and harder to invalidate.  In short, the court became “a booster of its own specialty.”


Tags: patent crisis patent law U.S.

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