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Putting patent litigation in context: Disputes are nothing new, increasing court focus on documentation requirement is

The presence of disputes is not symptomatic of a “broken” system — the pertinent question is: what will be the emphasis in resolving these disputes?

Patents represent a long-term investment regime, systematically pitted against short-term exigencies like access to medicine and consumer choice. Simply put, the U.S. patent system is like a retirement savings plan — a giant national 401(k) through which we have historically agreed as a country to pay a little more now for today’s innovations in exchange for having more great innovations available in the future. Fidelity to the patent system poses a classic question: Is it wiser to use resources now or save for the next generation? Naturally and understandably, there is a public desire to capitalize on advances in technology immediately. And the IP system is affirmatively designed to get in the way of that. It is no wonder that conflict follows.

Nobody has contributed more to its “innovation IRA” than the United States, and the tensions inherent in the system inevitably lead to disputes. But the “sky is falling” mentality increasingly prevalent in IP discourse must be put into context. Patent litigation is nothing new. The “smartphone wars” currently serving as the poster child for IP alarmists are hardly the first patent war. Similar disputes arose in the middle part of the 19th century with sewing machines. Then again in the 19th century with the telegraph and electricity. Yet again in the first part of the 20th century with airplanes. And we are seeing such disputes again today with consumer electronics devices including not just smartphones, but tablets and gaming consoles.

Contributing Author

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David J. Kappos

David J. Kappos is a partner at Cravath, Swaine & Moore LLP. He is widely recognized as one of the world's foremost leaders in the...

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