Should there be an easier way to infringe patents? The question was the subject of heated debate during a wide-ranging panel discussion on the state of intellectual property law at the Federalist Society’s annual conference today.
Daniel Ravicher, president of the Public Patent Foundation, proposed that the government do away with the use of preliminary injunctions against patent infringers, and require patent holders to accept royalties instead. “With intellectual property, I think we should encourage efficient infringement,” Ravicher said.
That suggestion drew a rebuke from libertarian scholar Richard Epstein, a professor at New York University School of Law. He said efficient infringement systems in contracts are a “total nightmare.” Compulsory licensing systems rarely seem to arrive at appropriate royalty rates, he said. He then called the idea of doing away with injunctions an example of “political, economic and intellectual stupidity.”
Epstein pointed to the growth of innovation in the pharmaceutical industry after Congress strengthened drug patents in the 1980s as an example of how strong patents can yield benefits. But during his turn at the microphone, Professor Michael Meurer, a research scholar at Boston University School of Law, argued that pharmaceuticals gave only half the picture. The current patent framework works well for the drug market, he said, but poorly in the information technology and communications industries.
Meurer said there has been an “explosion” of patent litigation in those industries because patents are hard to search and ill-defined. He called for more transparency in patents and better claim interpretation.
Professor F. Scott Kieff of George Washington University Law School argued that weaker patents have unforeseen consequences, particularly in the area of competition. “Big companies love a weak patent system because they can communicate with each other through weak patent litigation,” he said, explaining that lawsuits allow companies to exchange information through discovery that would ordinarily be barred by antitrust law.
“These cases are not all about money,” Kieff said.