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August 26, 2012


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Stephen Schweizer

I enjoyed this summary of the big-picture issues in the Samsung v. Apple case. As Professor Picker writes, is useful to separate concerns about patent-trolls from this case, because neither party is a patent-troll. He is also correct that it is hard to evaluate the jury's decision without considering the voluminous evidence that was presented by the jury. (It would also probably help to read the four design patents at issue, their prosecution history, the _Markman_ opinion, etc. -- a lot of work to satisfy idle curiosity).

I thought that the feature of the patent system that had gotten the most flack in connection with this case was the role of juries, not NPE's or over-patenting or design patents. Patent jury trials are rare, but the stakes in patent litigation are set by the expectation that a patent trial could go before a jury. Uniformity is one of the leitmotifs that runs through patent law. I wonder if the use of juries conflicts with this goal, empirically? I'm certain it's easy to find papers suggesting dispensing with jurors entirely, or changing the juror selection system so you get educated jurors.

As a patent naif, I was also intrigued by the clause referring to "the virtues of separating invention, production and enforcement . . . ." Sounds virtuous enough to me, with that caveat that I think it's helpful to separate NPE's that have patents that should fail for indefiniteness, obviousness, or something like that, and NPE's who hold useful tech but don't build it themselves. Logically, it should be the former group that is reviled, not the latter group.


The other problem with the patent law system is that the because of the exceptionally high costs of registering a patent through a patent attorney, many start ups and one man bands find it difficult to afford patent services and therefore abandon the system. It also leads to patent trolling from big companies which just buy patents and then threaten others with infringement suits without actually performing any innovation. All of these considerations need to be balanced going forward in the area of patent law reform.

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