As a follow-on to yesterday’s op-ed by Professor Robert Merges, I think that Sun Microsystems General Counsel Mike Dillon’s statement last September on the patent tax go to the point of what reforms many high-tech execs would prefer:
[W]e were happy to recently host a visit to Sun by Congressman Lamar Smith. Along with Senators Hatch and Leahy, he has been a leader in the push for patent reform. In the course of our meeting, we shared our views on the need for significant changes to the current patent system, including the repeal of Sec. 271(f), limits on injunctive relief and the need to restrict damage awards to the value of the invention described in the contested patent. (Under the current system a plaintiff claiming a patent on a small, inexpensive component like a heat sink can claim damages based on the total profit for the entire product - even if it is something that contains thousands of other components.)
Although I suspect that Dillon is also upset about “bad” patents, patent quality was not even in his list of complaints. Rather, all these reforms would change the value of patents across the board.
It is my perception that many high-tech execs are quite anti-patent after being burned a time or two. Perhaps they should read Professor Merges recent empirical work on “Patents, Entry and Growth in the Software Industry.” In that paper, Merges finds that his data “suggests a simple overall conclusion: patents are not killing the software industry, and successful firms are paying attention to patent quality, at least according to some measures.”
Merges’ paper is focused on new entrants into the market. Thus, even after reading the paper, bastions of the old-software-market still might not be happy with the current state of patent law.