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Obama Transition Team Member on “Optimizing” the Patent System

[Previously posted on the Mises Blog, Nov. 2008]

As noted here here, one of Obama’s transition “team members is Reed Hundt, who was Bill Clinton’s FCC Chair from 1993 through 1997. Hundt is slated to work on the agency review team in charge of international trade and economics agencies.” In a 2006 Forbes op-ed, Hundt had various suggestions for patent reform. They are not all terrible, but they continue to miss the point by struggling to find some way to make the system work better. Part of his proposal is to reduce the number of patents granted, increase fees, and increase funding of the USPTO. Writes Hundt: “First, we should slash the number of patents granted each year by 90%. In 2004 the U.S. Patent &Trademark Office issued 165,000 patents. Sixteen thousand is more like an optimal number.” He proposes a $500k fee companies can pay for a “fast-track” one-year patent application review.

Typical bureaucratic hubris to think he knows the “optimal” number of patents–though technically he is right that 16,000 is “more like” an optimal number than is 165,000, since the optimal number is zero. This is not dissimilar to another recent proposal to improve patent quality and reduce the number of patents granted by radically increasing filing fees from the $1000 level to about $50,000. As Manuel Lora noted to me, this is like the Laffer Curve of Patents (see Rothbard’s evisceration of the Laffer Curve). Such high fees would of course reduce the number of patents, but would also tend to benefit large corporations.

These guys ought to give up trying to fine-tune an inherently unjust system and just admit it ought to be scrapped. Hundt writes, “We have a horribly expensive system, with huge backlogs and a daunting litigation risk. No wonder the Chinese don’t want to adopt it. Let’s get rid of it and start from scratch.” Well, he’s half-right.A few more responses to selected comments by Hundt:

Second, we need to spend more money on the system. The budget of the U.S. Patent & Trademark Office is $1.5 billion. That ought to be tripled to $4.5 billion . . .

Who do you mean, “we,” kemosabe? Not if it requires taxpayer funding.

We don’t want grossly overworked professionals trying to figure out whether specific algorithms used to refresh the pixels on a computer monitor screen ought to be patented.

No, we want bright young Clintonite master bureaucrats!

Fourth, all patent case awards should be forward looking and linked to lost sales. In other words, plaintiffs who win patent-infringement challenges should be able to enjoin only future competition.

I thought he was onto something with his first sentence, but then he shys away from radical reform by not urging the abolution of all patent injunctions.

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