Harvard Business Review

End the Patent Wars


The Court of Appeals for the Federal Circuit, the nation’s top patent court, recently reached a decision that will have breathtaking ramifications: scientific research methods per se can be patented for a field of research. This decision promises to accelerate the flood of patent litigation, which shows that the recent America Invents Act does not go far enough to fix the patent system.

The case in question, Classen Immunotherapies v. Biogen IDEC, concerned the timing of childhood vaccinations and the affects on a child’s future risk of contracting certain disorders such as diabetes. Classen obtained a patent for testing an immunization schedule against a control group and for using the test results to adjust the immunization of patients. That is, in the words of the dissenting judge, Classen sought to “monopolize the process of discovery itself.”

But Classen did not figure out the best schedule to prevent diabetes and other disorders. It was the defendants, Biogen and GlaxoSmithKline, who were doing the real research. Classen sued them, and the Court of Appeals for the Federal Circuit upheld Classen’s broad, abstract patent.

This case is but one example of patents discouraging further research and innovation. It is not hard to imagine the kind of chaos that might emerge if engineers, scientific researchers, medical providers, and computer programmers were sued for making use of standard methods of scientific discovery.

Since the mid-1990s the patent court has been pushing the boundaries for patents beyond technology, issuing patents for relatively abstract processes of practicing medicine, conducting business, and performing mathematical analyses. As we show in our book Patent Failure, patent litigation has tripled as a result. In most industries, firms now get substantially less benefit from their patents because of the risk of unavoidable patent litigation.

The unpredictable boundaries and the increase in litigation discourage innovation. And so an innovative firm like Google spends billions of dollars to acquire patents from Motorola and IBM. They do this not because they need the ideas in those patents, but because they need the legal weapons to counterattack rivals who sue them.

The role of patents in the growth of innovation needs to be restored. President Obama just signed the America Invents Act of 2011, but although the bill makes some improvements, it does little to address the underlying causes of the patent litigation flood. The Supreme Court, too, recently expressed the need to restrict patents on abstract ideas in Bilski v. Kappos, but that isn’t enough. Until patent law effectively restricts patents on abstract ideas, it will not promote job creation and economic growth, as it has in the past.

Copyright © 2012 Harvard Business School Publishing. All rights reserved. Harvard Business Publishing is an affiliate of Harvard Business School.

James Bessen is Lecturer in Law at Boston University School of Law and a Fellow at Harvard's Berkman Center, and is a former software innovator and CEO. Michael Meurer is a Professor of Law at Boston University. They are the authors of Patent Failure.

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