Patently flawed

INNOVATIONS protected by patents are a wellspring of the US economy -- and especially of the Massachusetts economy. So any congressional reform of the patent law should follow a basic rule of medicine: "First, do no harm." If the current law were as deeply flawed as some critics say, Kendall Square in Cambridge would not be the envy of other nations seeking to create their own incubators of new technology. The most serious problem with the patent system is not its ground rules but simply understaffing of the patent office.

The strongest advocates for changing the law are high-tech firms that often find themselves sued by patent holders who contend that their inventions are being used without license. Lawyers for the high-tech companies have taken to calling these patent holders "patent trolls" and accuse them of bringing suit in federal courts in places like eastern Texas, which has a reputation for favoring plaintiffs in these cases. The high-tech firms want to limit this venue-shopping by patent holders and the damages they can get if their claims are upheld. The firms also want more opportunity to challenge new patents after they have been approved.

On the other side are the pharmaceutical industry, biotech firms, research universities, and even some high-tech companies. They say they would welcome some changes in the patent system but worry that bills now before Congress would seriously weaken the patents that are their lifeblood. Lita Nelsen , director of the Technology Licensing Office of the Massachusetts Institute of Technology, says, "Only patents protect the little guy," and points out that the vast majority of biotech startups depend on university patents.

On two aspects of a patent bill now before Congress, there is broad agreement. Both sides would approve granting patents to the first applicant to file for a specific invention. Current law favors "the first to invent," a standard that sometimes requires protracted fact-finding. Switching to "first to file" would bring the United States into accord with international practice. Also, many who oppose major changes in the law would nevertheless agree to some limits on venue-shopping by plaintiffs.

Yet the bill is silent on what both sides agree is a fundamental problem: the inadequate staffing of the patent office, which can lead to approval of undeserving patents. There is now a backlog of 600,000 applications, and an examiner has just 19 hours on average to spend on each application.

Congress is now loath to appropriate more for any government function without an offsetting cut in funding or increase in revenue elsewhere. But finding more money for more patent examiners should rate at least as high a priority as amending the patent law. And no reform of the law should weaken the patents that drive this state's innovative economy.