Drowning in the Patent Pool: Is Statutory Invention Registration a Lifeguard?

Patents for inventions, available since the first Congress enacted the Patent Law of 1790, have been controversial. Defenders justify patents on the grounds that they are necessary to protect inventors from free riding—copying that would deprive the inventors of an opportunity to recover the costs of development. Detractors attack patents as unnecessary monopolies, thwarting innovation. The debate continues, even as the law itself has remained remarkably constant. Technology and industry structure have not remained constant, however. Patents have proliferated, resulting in patent thickets that make it impossible to create and market any innovative product without infringing hundreds of patents. Patent trolls have arisen, salivating at the money they can earn from holdups when they threaten infringement suits. Innovative firms struggle with defenses. They engage in cross licensing arrangements and patent pools to deal with the patent thicket problem. They encourage state legislatures to enact statutes giving them new defenses against patent trolls. Increasingly, at least in some industries, they look for ways to disclaim patent protection. Even then, they also must erect defenses against other patent holders that might sue them for infringement. For nineteen years, the Patent Act provided a way to do this, but the Statutory Invention Registration (“SIR”) alternative was little used. Now, the problem has gotten worse, and it is time to bring back the SIR, or to erect a private substitute for it.