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What’s wrong with the patent system? It’s too easy. U.S. District Judge Ronald Whyte, who has overseen plenty of patent cases from his San Jose bench, offered his diagnosis of the patent problem during a Boalt Hall School of Law conference Friday. “The most shocking thing I learned is the percentage of patents applied for that end up being issued,” Whyte said, referring to figures ranging from 74 percent to 90 percent. Whyte said he hears students say all the time that they think only a small percentage of patents are approved. Students will tell him that “inventions don’t come along every day,” he said. “I agree with that.” In a light-hearted talk, Whyte said he had polled other members of the bench for their views on patent reform. One jurist — Whyte wouldn’t say whom, except that his brother is on the U.S. Supreme Court — recommended removing district court jurisdiction over patent cases. Whyte said another judge told him patent cases are more acrimonious than any other matter he handles, citing a fistfight that erupted during one deposition. Whyte endorsed some of the suggestions the Federal Trade Commission made in October for improving the patent process. A post-issue review window holds promise, Whyte said, if it can lessen the amount of litigation without creating more red tape. It also makes sense, he said, to limit findings of willful patent infringement to cases in which a patent holder provided written notice of infringement to the defendant or the defendant deliberately copied the invention. The FTC’s proposal to tighten the standards for evaluating whether a patent is obvious “sounds like a good idea,” he said. “One concern is that it gets away from an objective standard and would be guaranteed in almost every case to [lead to] a battle of experts.” “I don’t like experts,” Whyte added. In his experience, he said, experts on whether a patent was willfully infringed “are very much paid advocates as opposed to someone truly independent.” Alluding to some silly patents that have been issued, Whyte asked if tightening the standard for obviousness would eliminate the patent for, say, picking up a box without bending your knees or the patent on dipping a baby’s butt in paint and using it as a stamp. “It we tighten it too much,” he joked, “we will lose a lot of our humor.”

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