Correction to This Article
The .gov column in the May 5 Business section misstated details of a patent obtained by Google Inc. The patent is for a method of highlighting search terms in a document that matches the search, not on the page that lists all possible matches of the search.
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Evaluating A Patent System Gone Awry

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But small inventors, and representatives from other industries such as biotechnology, argue that the hammer of injunction and high damage awards are the only things that hold back big companies from trampling on smaller competitors' patents, crushing them in the marketplace and then simply paying any fines as a cost of doing business.

Not on the table, however, are more controversial notions aimed at deeper change to the patent system. These were snuffed out long ago, in a process effectively hijacked by large companies and powerful patent-lawyer groups.

In an extensive report in 2003, for example, the Federal Trade Commission noted that many technologists and economists think there are too many patents, and especially wonder whether those for software and Internet business methods -- such as the Google bold-facing patent -- make sense.

Even Bruce R. Chizen, chief executive of Adobe Systems Inc. and chairman of the Business Software Alliance, which is leading the charge for the technology industry, acknowledges that allowing software patents in the 1980s was a bad idea. But Chizen argues that it's too late to turn back now.

A study released months later by the National Academies of Science argued that a key standard for granting patents needed to be "reinvigorated." Patents must pass muster as unique, useful and non-obvious, and many witnesses told both the NAS and the FTC that the standard for what was obvious has weakened significantly over time, leading to too many low-quality patents that often are the subject of litigation.

Many of these findings were quickly criticized by patent lawyers and companies.

When the FTC, NAS and the American Intellectual Property Law Association jointly sponsored a series of town meetings around the country to discuss next steps, none of these more controversial notions was on the agenda.

Instead, the meetings focused on areas of broad agreement between the groups.

A new procedure, for example, would allow patents to be contested and reviewed again by the patent office after they are granted but before challenges go to court.

In addition, outside parties would be allowed to bring information to the patent office that might help determine whether a patent should be awarded. "Prior art" that might show that an idea was not original is currently the responsibility of the patent applicant to provide.

And all agree that the U.S. Patent and Trademark Office needs more resources to do its job.

Patent issues tend to be nonpartisan, and some tweaking of the law seems likely from a Congress with a track record of strengthening intellectual property.

But perhaps more than any issue on Capitol Hill this year, this one is firmly in the hands of those with vested interests. Those with alternative ideas, and the general public, are on the outside, looking in.

Leslie Walker is away. Her .com column will resume when she returns. Jonathan Krim can be reached atkrimj@washpost.com.


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