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Ill-Conceived, Even If Competently Administered: Software Patents, Litigation, and Innovation—A Comment on Graham and Vishnubhakat

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  • Shawn P. Miller
  • Alexander Tabarrok

Abstract

The number of patents has increased dramatically in the past three decades, as has the number of patent-related lawsuits, particularly in the field of software. Industry and academic experts have expressed concern that many of the patents being issued are of low quality. Writing in the Journal of Economic Perspectives, Stuart Graham and Saurabh Vishnubhakat have defended the United States Patent and Trademark Office, arguing that the PTO has acted responsibly in issuing patents that are legally valid and that it is handling problems constructively. We accept some of Graham and Vishnubhakat’s defense of the PTO, but argue that the most important issue is not whether the law is being competently administered but whether patent law, particularly as applied to software, is creating patents that are overly broad and ambiguous. We maintain that it is, and that the results are less innovation and more costly and unproductive litigation.

Suggested Citation

  • Shawn P. Miller & Alexander Tabarrok, 2014. "Ill-Conceived, Even If Competently Administered: Software Patents, Litigation, and Innovation—A Comment on Graham and Vishnubhakat," Econ Journal Watch, Econ Journal Watch, vol. 11(1), pages 37-45, January.
    • Handle: RePEc:ejw:journl:v:11:y:2014:i:1:p:37-45
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    References listed on IDEAS

    as
    1. Tabarrok Alexander, 2002. "Patent Theory versus Patent Law," The B.E. Journal of Economic Analysis & Policy, De Gruyter, vol. 1(1), pages 1-26, October.
    2. Boldrin,Michele & Levine,David K., 2010. "Against Intellectual Monopoly," Cambridge Books, Cambridge University Press, number 9780521127264.
    3. Marco Alan C., 2004. "The Selection Effects (and Lack Thereof) in Patent Litigation: Evidence from Trials," The B.E. Journal of Economic Analysis & Policy, De Gruyter, vol. 4(1), pages 1-47, September.
    4. Stuart Graham & Saurabh Vishnubhakat, 2013. "Of Smart Phone Wars and Software Patents," Journal of Economic Perspectives, American Economic Association, vol. 27(1), pages 67-86, Winter.
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    Citations

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    Cited by:

    1. Eli Dourado & Alex Tabarrok, 2015. "Public choice perspectives on intellectual property," Public Choice, Springer, vol. 163(1), pages 129-151, April.
    2. Stefano Comino & Fabio M. Manenti & NIkolaus Thumm, 2017. "The Role of Patents in Information and Communication Technologies (ICTs). A survey of the Literature," "Marco Fanno" Working Papers 0212, Dipartimento di Scienze Economiche "Marco Fanno".

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    More about this item

    Keywords

    Intellectual property; patents; software patent; innovation;
    All these keywords.

    JEL classification:

    • L50 - Industrial Organization - - Regulation and Industrial Policy - - - General
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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