Patent System :: Texas Law Review, John M. Golden

Can innovators in our society prosper with our current unruly system? One cannot simply eradicate our current patent system and have freeloaders use ideas without compensating the original person who held the idea. One also cannot enforced a strong law against patent infringers because it dissolves any person or entity moral in producing new innovation. John M. Golden (2010) in his article in Texas Law Review suggests the antidiscrimination approach to limit favoring one party over another in regards to patent remedies. He suggests to limiting the term of patent's enforceability. This doesn't necessary give anyone the opportunity to take advantage of pre-existing patents but to tone done the enforcement from patent trollers or from major corporations against small businesses or inventors. Golden (2010) also suggests that the government agency, PTO, should be given more major power over what constitutes as patentable and providing private parties to challenge the validity of new paten ts to the PTO. However, one could argue with the current PTO having difficulties reviewing and validating infringments, giving them more power will not be beneficial because the agency receives thousands of patent suits in a year (Golden, 2010). The name behind this concept is called "devolution", which according to Golden, "places discretion in the hands of private parties and government" when dealing with cases (Golden, 2010). In resolving limitations of patent holders, Golden (2010) briefly mentions that patents should be novel and nonobvious in regards to pointing out the distinct subject matter to the patent product or service among other previous patents. Golden (2010) also wants to restrict remedies for patent infringement by not giving patent holders the right to damages but instead leave the relief to the courts to decide the amount of loss. Michelle Armond (2003) of the California Law Review proposes that the courts recognize the "affirmative defense of independent invention" to preliminary injunction litigations. The idea is to focus on the defendants rather than the plantiffs, the patent holder, conduct by analyzing the infringing companies honest research and development procedures (Armond, 2003). This provides small businesses an opportunity to protect themselves against patent trolls or threatening patent holders. Armond also support that the idea that patent infringement cases should settle remedies after the case and that the courts should accurately analyze the claims brought by the patent holder on whether permanent injunction should be appriopriate (Armond, 2003). In addition, Armond (2003) suggests that the courts should reach a conclusion before any remedy is given to the patent holder.