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The patent system is broken
Reform is needed to stimulate U.S. innovation
Friday, July 27, 2007

Throughout American history, inventors from Ben Franklin to Thomas Edison have relied on strong legal protection for their intellectual property. Without such protection, the creators of innovative goods and services would see their work stolen or used by others without legal recourse, undermining one of the foundations of their prosperity -- and ours.


Bill McDermott is president and CEO of SAP Americas & Asia Pacific Japan, based in Newtown Square, Pa. (www.sap.com).


Our company, SAP Americas, has been a beneficiary of the U.S. patent system because it helps protect our substantial investment in innovative software solutions for business and government customers. As a result, our company has grown to employ nearly 2,000 people at our U.S. headquarters in Pennsylvania and more than 7,000 nationwide.

While the U.S. patent regime works well overall, several trends are beginning to undermine the system, including ever-faster technological innovation and rising global economic competition.

Over the last few years, the U.S. Patent and Trademark Office has been inundated with a record number of patent applications. Despite their hard work, patent examiners have been unable to keep up. As a result, the PTO is issuing a rising number of poor-quality patents which are drawn too broadly, too narrowly or inaccurately, especially when it comes to new, rapidly changing technologies. According to a report by the Federal Trade Commission, "a questionable patent can raise costs and prevent competition and innovation that would otherwise benefit consumers."

The current patent system also has created a burden for our courts, spawning a growing caseload of lengthy and expensive lawsuits. Nationwide, the number of patent lawsuits nearly tripled between 1991 and 2004, and the number of cases jumped nearly 20 percent between 2001 and 2005. Until 1990, only one patent case had ever resulted in a damage award greater than $100 million, but in the last five years, more than 10 judgments and settlements have topped that amount, with four exceeding $500 million. Excessive legal settlements are the equivalent of a tax that is passed on to consumers in the form of higher prices, lower employment and reduced ability to innovate.

Recent reports from the National Academy of Sciences and the Council on Foreign Relations have analyzed how the U.S. patent system is beginning to harm our ability to compete in the global economy. Leading legal scholars and economists have also spoken out in favor of patent reform. Even the U.S. Supreme Court has chosen to weigh in, hearing an unprecedented four patent-related cases in the last six months alone.

All of these signs point to the fact that the imbalances in America's patent law are becoming an impediment to our country's global leadership in scientific and technological innovation and overall economic prosperity.

Fortunately, a bipartisan leadership team in Congress is working to enact the Patent Reform Act of 2007 (H.R. 1908 and S.1145). This legislation is designed to ensure that America remains a leader in global innovation by modernizing the U.S. patent laws. Identical versions of the bill were introduced in the U.S. House and Senate in April, and similar versions were approved by the relevant committees in each chamber this past week. Votes in the full House and Senate are expected this year.

The bill includes provisions to clarify patent guidelines and improve patent quality; ensure that remedies for patent infringement are equitable and fair; give the U.S. Patent and Trademark Office greater resources to process a growing number of more complex patent applications; and harmonize the American system with those of other major patent-granting nations. The bill enjoys broad, bipartisan support in Congress, although its sponsors may face delaying tactics from parties who benefit from the weaknesses of the current system.

Opponents of modernizing the patent system, especially the biotech and pharmaceutical industries, make dire predictions that reforms will spawn more lawsuits -- stifling innovation, crushing small inventors and even putting pharmaceutical manufacturers out of business. In every patent case the Supreme Court has taken up recently, reform opponents have forecasted that ruling against their position would devastate the strength of the economy. In each case, however, the Supreme Court has overwhelmingly ruled against their position, and the dire predictions have not materialized.

Congress has repeatedly fine-tuned the patent system to take into account the needs of the pharmaceutical and biotech industries. The Patent Reform Act would strengthen the patent system broadly for all industries, and benefit consumers as well.

For companies like SAP, patent reform is crucial to our ability to continue innovating, creating high-paying jobs and supporting economic growth in Pennsylvania and nationwide. The Patent Reform Act could help unleash the next wave of technological innovation, delivering wonderful inventions and a higher quality of life to all Americans.

Pennsylvania's senior senator, Arlen Specter, the top-ranking Republican on the Senate Judiciary Committee, can play a critical role in shepherding this bill to enactment as it nears floor votes in the House and Senate. On behalf of innovative companies and high-tech workers across Pennsylvania, we applaud his leadership on this issue to date and ask him to keep up his efforts to ensure a fair and balanced approach to reforming the patent system.

First published at PG NOW on July 26, 2007 at 5:32 pm