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Patent system's problems defy easy solutions

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Legal

Reliance on the horse was a sign of the "primitive state of the country and of the patent office at the time, where the quickest way to deliver messages around the city of Washington was by a boy on a pony," according to "The Patent Office Pony," by Kenneth W. Dobyns. He also writes that in 1835, the office issued 757 patents.

If only things had stayed so simple. In fiscal 2004, the U.S. Patent and Trademark Office approved about half of the 376,810 applications it received, according to preliminary data, and it expects a flood of new activity this year. Although the office has raised application fees and hired new examiners, by many accounts the agency is struggling with its workload.

Lawyers, companies, inventors and politicians all agree that the nation's patent system is in desperate need of reform. They cite concerns about proliferating litigation, questionable licenses and a potential decline in American competitiveness. The question is how to reform: For all the complaints, little consensus has emerged on how to fix the system.

In the worst-case scenarios, misguided reform efforts could unleash unintended consequences. For example, proposals to weaken the threat of court injunctions are designed to help defendants and reduce the number of lawsuits--but critics say this so-called reform could actually increase the amount of litigation.

The issue is coming to a head in Washington, where committees in the House and Senate are planning hearings on a host of proposals to change the nation's patent law and how the Patent and Trademark Office operates. The ideas being proposed run a wide gamut, from forcing patent holders to license their inventions to others, to the elimination of software patents altogether.

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