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Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk

3.8 out of 5 stars 5 customer reviews
ISBN-13: 978-0691134918
ISBN-10: 069113491X
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Editorial Reviews


Honorable Mention for the 2008 PROSE Award in Law and Legal Studies, Association of American Publishers

One of Choice's Outstanding Academic Titles for 2009

"James Bessen and Michael J. Meurer explode...illusions in their hard-hitting analysis of how patents perform economically. [T]his is an important book, for policymakers, lawyers, scholars and also for universities."--Fiona Reid, Times Higher Education

"The U.S. patent system is not working. It stands accused on all sides of stifling innovation instead of nurturing it. [E]conomist James Bessen and law academic Michael Meurer show that the system no longer provides predictable property rights. They go on to offer solutions based on empirical evidence from history, law and economics."--Harold Wegner, Financial Times

"Bessen and Meurer provide the first comprehensive review of the patent system in more than a generation, bringing together a survey of the available empirical data and a clear statement of the usefulness of and limits to the patents as property model."--Choice

"[R]eaders of Patent Failure may not be sanguine about the likelihood that Congress or other policy-makers even care about, much less rely on, empirical data to inform their decision-making. But this book successfully demonstrates that they should. Ultimately, Patent Failure is a significant contribution to the growing literature on the problems and promise of the US patent system. . . . Patent Failure rewards careful reading and is a book that cannot credibly be ignored by anyone seriously concerned about the fate of the US patent system."--William T. Gallagher, Law and Politics Book Review

"[W]ell-written and well-documented book. . . . [T]heir finding regarding the profitability of patents for patenting firms is the piece de résistance."--Julio H. Cole, Independent Review

"In Patent Failure, Bessen and Meurer examine the U.S. patent system's current procedural and operational shortcomings. Considering the book's titular promise to reveal the dangers posed by judges, bureaucrats, and lawyers, readers might expect an angry broadside leveled at the entire legal profession. On the contrary, Patent Failure is measured and methodical, a provocative, evidence-based book for the lawyer and entrepreneur alike. The authors are nothing if not reasonable men."--Strategy + Business

"[Patent Failure is] one of the most comprehensive empirical analyses of the patent system that has been performed in decades. Rather than piling up anecdotes of beleaguered innovators and rapacious patent trolls, Bessen and Meurer have done the hard work of collecting detailed data about the patent system. And the findings documented in Patent Failure are sobering."--Timothy B. Lee, ARS Technica

"In keeping with its title, Patent Failure provides a critical assessment of the nation's patent system. The book inevitably leads the reader to ponder the value of patents as property and as gauges of economic growth."--Livinia N. Jones, Centre Daily Times

"All in all, this book's advantage over other titles in the field is that it goes beyond models and theories providing a bright and well documented picture of the real world of the US patent system."--Andrea Filippetti, Research Policy

"It's an excellent book and completely worth reading."--Mike Masnick, Techdirt

From the Back Cover

"This is a pioneering and heroic effort to quantify the ways in which our patent system has failed to live up to its raison d'être: promoting innovation. The book will be controversial. But the authors make a forceful case that deserves to be heard."--Eric Maskin, Albert O. Hirschman Professor of Social Science at the Institute for Advanced Study and Nobel Laureate in Economics

"Bessen and Meurer provide a strong, balanced empirical analysis of the real-world effects the U.S. patent system has on our twenty-first century economy. Their book is essential reading for anyone interested in promoting a patent system that truly drives innovation for the U.S. economy."--Mark Chandler, senior vice president and general counsel, Cisco Systems

"Bessen and Meurer's book is grounded in both economics and the real world. It hits the right notes for scholars, lawyers, and policymakers. Timely and important, Patent Failure is the best of the books on patent reform."--Mark Lemley, Stanford University


Product Details

  • Hardcover: 352 pages
  • Publisher: Princeton University Press (March 23, 2008)
  • Language: English
  • ISBN-10: 069113491X
  • ISBN-13: 978-0691134918
  • Product Dimensions: 9.2 x 6.4 x 1.1 inches
  • Shipping Weight: 15.2 ounces (View shipping rates and policies)
  • Average Customer Review: 3.8 out of 5 stars  See all reviews (5 customer reviews)
  • Amazon Best Sellers Rank: #2,353,558 in Books (See Top 100 in Books)

More About the Author

James Bessen is a scholar studying the economics of innovation who has also been a successful innovator and CEO of a software company. In 1983, Bessen developed the first commercially successful "what-you-see-is-what-you-get" PC publishing program, founding a company that delivered PC-based publishing systems to high-end commercial publishers. Currently, Mr. Bessen is Lecturer in Law at the Boston University School of Law and Fellow at the Berkman Center on Internet and Society at Harvard. His work on patents has influenced policymakers in the US, Europe and Australia.

Customer Reviews

Top Customer Reviews

Format: Hardcover
Anyone inclined to read this book should just ignore its subtitle -- "How Judges, Bureaucrats, and Lawyers Put Innovators At Risk." I can only imagine that was thrown in to make this book appeal to right-wingers. Which is really strange, come to think of it: the book is sedate, scholarly, reasoned, and exhaustive, and if anything it will appeal to readers who enjoy Larry Lessig and Richard Posner. In no way do Bessen and Meurer suggest that the system be scrapped and those "Judges, Bureaucrats and Lawyers" be thrown out. In the world Bessen and Meurer desire, "bureaucrats" will still examine patent claims; lawyers will still prepare patent applications; and judges will still hear infringement claims. Bessen and Meurer want to change policies here and there to make the system more efficient, but it will still be the same system by the time they're done.

The dispute over patents has become rancorous in the era of the Internet, with lots of loud people asking that it be torn down, lots of other people claiming that the first group are unwitting pawns of big business, etc. Bessen and Meurer avoid almost all of that. Their claim is straightforward, and avoids all the parts of the debate that are unnecessary for establishing their point -- which is simply this: that as a system of property, there are certain things we should expect of a patent system. That is, just as real property gives you certain rights over, say, a parcel of land, and the right to exclude ne'er-do-wells from that land, so a patent is a legal right to exclude people from using your invention. And there are certain things that we should expect of patents, just as we would expect them from property law.
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Format: Hardcover
Well the valuation studies were interesting, but only up to a point. A patent holder isn't that interested in what patents are worth in the aggregate, the only thing that matters is how much an individual patent is worth. It's like talking about worldwide corn prices, when all I care about is how much my gallon of milk is worth.

One thing that annoyed me to no end is the harping on the E-Data case. Yes, we get it, the authors don't like software patents, but they should have come up with different examples. Actually, the case is not as bad as the authors make it seem. The definitions used by the court were not pulled from thin air but expert testimony and the specification of the patent. The authors over-rely on this case as a mistake, but it wasn't that baseless.

Another shortcoming is that they authors don't even mention (as far as I can remember) the MOST IMPORTANT patent case for the next few decades - the KSR decision. That came down in April of 2007 and it should have been discussed in this book from March 2008. This is especially so since obviousness standards are incorrect according to the authors. I guess the opinion undermined some of the authors objections so they just ignored it.

Overall the book is not a bad read, but the last few chapters where solutions are discussed are bare on the details. Asking the PTO to issue clearance opinions may be a good idea, but the details of this scheme are extremely important. Most likely if they thought it through, they would realize that if something is hard and expensive for a private attorney to do, it is impossible for the government to do. Also, if the specialized court of appeals is so bad, why are they asking for specialized district courts. The book would have been more worthwhile if there was more analysis of their suggestions, but still the work is worthwhile.
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Format: Hardcover Verified Purchase
Bessen and Meurer argue that America's patent system is in trouble because "it fail[s] to provide clear and efficient notice of the boundaries of the rights granted." Patent litigation has exploded, they say, and the costs of the system now outweigh the benefits. Generally speaking, with the exception of the chemical and pharmaceutical industries, Bessen and Meurer don't feel the patent system does a lot of good."[I]t seems unlikely that patents today are an effective policy instrument to encourage innovation overall," they conclude. They detail several reforms to help improve notice and to "make patents work as property" again the way they claim they once did.

Although the authors deal with patents broadly, the book has great relevance to digital technology policy because of their discussion of business method patents and software patents. They argue that software technology is especially prone to problems of "abstraction" and obviousness. As a result, software patenting has been a major contributor to the litigation explosion we have seen in recent years.

Although I agree with their case against software patents, I remain unconvinced that the patent system is failing as badly as Bessen and Meurer claim. Nonetheless, they present a powerful case that deserves to be taken seriously. Patent Failure will have an enormous impact on these debates going forward.
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The argument "Without boundaries, it ain't property" made the book for me.

I'm not a patent attorney, I'm an entrepreneur always trying to improve our Internet service. What confounds me, our engineers, and our law firm is the vague language of many software patents that we can't understand.

I loved the discussion of obviousness, boundaries, continuations, and abstract claims.

The two downers for me were:

1. The academic language. It makes you squint as if you're reading a patent application, ironic for a book suggesting claims be clear and unambiguous. Sample paragraph:

"Some readers might immediately find our objective to be somewhat oddly stated or, perhaps, overreaching. The key limiting qualifier here--the limitation that makes the empirical exercise feasible--is 'as property.' At the risk of getting a big pedantic, this phrase requires more careful discussion."

2. They dismiss patent trolls in a sentence or two as not a significant percentage of litigation. Um. Anyone noticing the exponential rise of defendants in patent troll cases over the last few years? Their data on trolls seemed olde.
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