Patents: Home on the Range or Wild Frontier?

The role of patents in our economy is becoming more critical as we move toward an economy where value is represented by intangible assets rather than tangible ones. The America Invents Act was enacted to update the Patent Act and enable the Patent Office to grapple with an increasing number of patent applications. Even with the reforms embodied in that law, commentators and practitioners have offered a series of differing analysis from economic, ethical or technological perspectives. At this conference, we will bring together some of the leading thinkers on patent policy and examine the arguments and metaphors about the future of patent policy.

Panel 1: Are Patents Fences or Landmines? Different companies and different industries treat patents differently. Some see them as a valuable offensive or defensive tool, while others see them as an annoyance or a cost of doing business. Some see them as providing valuable disclosure and setting property lines around which competition and innovation can thrive, while others see them as unpredictable and undefined thickets that hinder innovation. Are patent claims effective (or can they be) at delineating inventive activity? Does the patent system (or can it) facilitate disclosure? This panel will attempt to go beyond the rhetoric and take a more scientific approach to these questions, investigating economic, technical and ethical perspectives on the question of how patents can be used and abused.

Panel 2: The Evolving Patent Landscape Patent holders and others are finding increasingly clever ways of monetizing patent portfolios. There are always the tried and true leveraging techniques, like litigation, cross-licensing and asset transfers. But, in recent years, patents have reared their heads in many new and diverse forums, including patent auctions, patent portfolio insurance, “patent assertion” entities, standard-setting bodies, etc. How does this diversification affect the patent instrument itself? How does it affect patent holders or businesses trying to enter the patent fray? How does it affect the greater economy? The panel will not only discuss how patents are being used in the marketplace, but under what circumstances businesses and technologists push ethical boundaries (say, as to the disclosure, or lack thereof, of patents considered in a standard setting).

Panel 3: Patents as the Modern-Day Gold Rush There is a modern rush by companies to fill their coffers full of patent claims, much of which arguably amounts to prospecting. On one hand, this could be considered a bad thing. Staking claims to property that a company may never use or that may not be well defined creates what has been called “a patent thicket.” On the other hand, the gold rush that brought the exploration of the West (like the patent race within Silicon Valley) can be seen as spurring productive activity. The panel will discuss this analogy and evaluate its fit with and implications for patent policy. In so doing, it will also discuss strategies, including those made possible by the American Invents Act, to manage the increasing number of patent applications that the Patent Office is forced to deal with.