Abstract

Complaints about frivolous patents abound in academic, business, and policy circles, and the focus of blame is usually on the large number of junk patents that have issued from the Patent Office that are actually invalid. The underlying cause is said to be the relatively modest examination performed by the Patent Office. Most popular proposals for change suggest methods for segregating patents into two or so bundles based on whether the patents should be subject to closer examination. A so-called “second window of review” has been proposed to allow competitors to make the choice of which patents get closer examination; and a so-called “gold-plated approach” has been proposed to allow patentees to make the election. Applying a back-to-basics approach, this Article points out two core problems with these popular proposals: (1) they do not adequately account for the information costs, error costs, and risks of capture that accompany any system premised on flexible and discretionary administrative review, and (2) they overlook the central lessons learned through debates over civil litigation generally about how to balance the conflicting goals of speed, cost, accuracy, and finality. The Article then elucidates how some small changes to our patent system could be used to better solve the problem of bad patents than would other popular proposals. This small number of changes, which are implementable through either case law or statute, would interact to make available a symmetrical risk of fee and cost shifting for bad-faith litigation over patents to encourage parties to exchange information and resolve disputes before getting deeply into expensive litigation. Such an approach would directly address the complaints of patent critics without injecting the degree of unpredictability and political manipulability into the system that would be caused by their proposed changes. It takes seriously the importance to the economy of strong intellectual property rights as well as reforms designed to lessen the negative impact of junk patents and frivolous lawsuits.

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007) (“Leegin”), the Supreme Court completed the erosion of the per se rule against resale price maintenance (“RPM”) that began nearly 100 years prior.  It took only three months, however, for Congress to take steps toward reversing course by introducing the Discount Pricing Consumer Protection Act (“DPCPA”) in October 2007, which sought to legislatively overturn Leegin and mandate a rule of per se illegality in RPM cases.

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Economic theory is essential to antitrust law.  It is economic analysis that constrains antitrust law and harnesses it so that it is used to protect consumers rather than competitors.  And the relationship between economics and antitrust is responsible for the successful evolution of antitrust from its economically incoherent origins to its present state.  In my view, which I’ve expressed in greater detail elsewhere, the fundamental challenge for antitrust is one that is created by having “too many theories” without methodological commitments from regulators and courts on how to select between them.  The proliferation of economic models that came along with the rise of Post-Chicago economics and integration of game theory into industrial organization has led to a state of affairs where a regulator or court has a broad spectrum of models to choose from when analyzing an antitrust issue.

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As his Council of Economic Advisers made clear in its recent health care report, President Obama sees two primary goals for his health care reform efforts: to slow the growth of health care costs and to expand coverage of health insurance. It’s pretty clear, though, which of these goals is steering the ship. While the President’s proposals include a few modest measures ostensibly aimed at reducing costs (digitizing medical records, collecting and disseminating data on treatment-effectiveness, etc.), the primary focus is on increasing insurance coverage. That’s unfortunate, for relentless pursuit of coverage expansion is almost certain to undermine the goal of cost containment.

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George Priest has an excellent op-ed in the WSJ correctly calling out the Justice Department’s new Assistant Attorney General Christine Varney for attributing the financial crisis to a lack of antitrust enforcement…

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In his recent speech on the GM bankruptcy, President Obama reassured Americans that the government, which now holds 60% of GM’s stock, is not going to try to take over management of the company…

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Jeff Toobin has an interesting profile on John Roberts in the New Yorker (HT: Jonathan Adler who also takes issue with Toobin’s description of Leegin, but goes on to challenge Toobin’s general account of Roberts as a “stealth nominee”).   Toobin’s column has very little to do with antitrust.  with the exception of one sentence describing the Leegin decision where he writes…

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How much thought have you given to your electricity consumption? If it hasn’t gone beyond “I flip the switch and the light comes on,” you’re not alone, which is one of many reasons electricity usage in the United States is inefficient. But that’s beginning to change.

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If you haven’t been living under a rock recently, you’ve seen an incredible amount of hand wringing–and proposed regulation–around “excessive compensation.”  I’m a little too lazy to amass all the relevant links here, but both the administration and the congress are introducing regulations/bills and talking about the issue extensively.

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