Wednesday, March 29, 2006

Presumption of Validity

Courts currently grant injunctions against an accused patent infringer nearly automatically. This is done because patents carry a presumption of validity. Every patent issued by the USPTO is given the same status. The courts treat them all equally, as if the quality of each patent were beyond question. Yet we know that patent quality varies wildly, and that the patent office isn't always very good at distinguishing what is/isn't obvious, novel, without prior art, etc.

Today's Supreme Court Hearing in the eBay vs. MercExchange case provides evidence that at least some of the Justices understand this discrepency. Chief Justice John Roberts described the MercExchange patent this way:
It's displaying pictures of your wares on a computer monitor and picking the ones you want. I might be able to do that.... It's not (like the patent describes) the internal combustion engine. It's very vague.
and Justice Stephen Breyer suggested that if eBay's "Buy it Now" feature could be patented, then
maybe A&P could patent its process for a supermarket.
Will any of this talk result in the removal of the presumption of validity? Opponents claim that taking such a step would result in pandemonium, with inventors getting a raw deal, rapists and murderers going free, and wild mountain gorillas declaring outright war on babies and little children. Personally, I think removing the presumption of validity would be a step in the right direction; let patents stand on their merits, not on the decisions of a single patent examiner in the PTO beauracracy.


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