Journal of Economic Perspectives: Vol. 27 No. 1 (Winter 2013)

Graham, Stuart, and Saurabh Vishnubhakat. 2013. "Of Smart Phone Wars and Software Patents." Journal of Economic Perspectives, 27(1): 67-86.

DOI: 10.1257/jep.27.1.67

Among the main criticisms currently confronting the US Patent and Trademark Office are concerns about software patents and what role they play in the web of litigation now proceeding in the smart phone industry. We will examine the evidence on the litigation and the treatment by the Patent Office of patents that include software elements. We present specific empirical evidence regarding the examination by the Patent Office of software patents, their validity, and their role in the smart phone wars. More broadly, this article discusses the competing values at work in the patent system and how the system has dealt with disputes that, like the smart phone wars, routinely erupt over time, in fact dating back to the very founding of the United States. The article concludes with an outlook for systematic policymaking within the patent system in the wake of major recent legislative and administrative reforms. Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform, as it has during the passage and now implementation of the landmark Leahy-Smith America Invents Act of 2011.

Graham, Stuart (US Patent and Trademark Office and GA Institute of Technology)
Vishnubhakat, Saurabh (US Patent and Trademark Office and Northern VA Community College)

K11: Property Law
L63: Microelectronics; Computers; Communications Equipment
L86: Information and Internet Services; Computer Software
O31: Innovation and Invention: Processes and Incentives
O34: Intellectual Property Rights