The Patent Crisis and How the Courts Can Solve It

Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescription drugs wreak havoc on information technologies and vice versa. According to Dan L. Burk and Mark A. Lemley in The Patent Crisis and How the Courts Can Solve It, courts should use the tools the patent system already gives them to treat patents in different industries differently. Industry tailoring is the only way to provide an appropriate level of incentive for each industry.

Burk and Lemley illustrate the barriers to innovation created by the catch-all standards in the current system. Legal tools already present in the patent statute, they contend, offer a solution—courts can tailor patent law, through interpretations and applications, to suit the needs of various types of businesses. The Patent Crisis and How the Courts Can Solve It will be essential reading for those seeking to understand the nexus of economics, business, and law in the twenty-first century.

“Burk and Lemley offer the right diagnosis of the illness (i.e. sectorial shortcomings) of the patent system and suggest the right sectorial therapies, as well the right doctors—judges. This book should be carefully read, not only by the doctors, but by all players in the field, who soon may be facing the Burk and Lemley therapy.”

“Every chief patent counsel in a major U.S. company should read this book by Dan Burk and Mark Lemley. It provides the first comprehensive explanation of why the patent system is perceived by different industries in fundamentally different ways. Burk and Lemley make a credible case that the courts might be more effective than Congress in achieving some reforms, by tailoring patent law to specific industries through more than a dozen ‘policy levers’ and common law doctrines that are enumerated in the book.”