Inventing a new system

AMERICA HAS LONG PRIZED INVENTORS. The scrappy dreamer celebrated on the "American Inventor" reality TV show is also one of the few professionals -- if that's not too grandiose a term -- specifically protected in the Constitution. But lately the federal government has been struggling to fix a patent system that prizes inventors too much. The Supreme Court is considering two cases this term that could roll back the type of patents granted and allow less punitive remedies when one is violated. The U.S. Patent and Trademark Office is mulling a rule that could narrow the scope of patent applications. And a House subcommittee is working on a bill by Rep. Lamar Smith (R-Texas) to make it easier to block or remove bad patents.

The activity reflects a growing sense in Washington that the patent system has lost its moorings. That's due in part to rapidly changing technologies that prompt patent holders to make novel and unanticipated claims. But it also reflects the nature of patents and intellectual property generally. With a plot of land or a string of pearls, it's easy to tell where one person's property ends and another's begins. With something as abstract as an invention, however, those lines are fuzzy and likely to shift over time.

High-tech companies are increasingly running into stop signs waved by patent holders who claim the rights to some element of the companies' products or services. One example is Research in Motion Ltd., maker of the popular BlackBerry wireless e-mail device, which was forced to pay more than $600 million in a patent infringement suit -- despite the very real possibility that the patents on which the suit was based will prove to be invalid. The BlackBerry case is Exhibit A for patent reformers, who want to give companies a better chance to challenge patents before they go to court and to reduce the likelihood that federal judges will shut down services that have some infringing elements.

But the tech industry and its allies face powerful opponents on Capitol Hill, led by pharmaceutical and biotechnology companies. Like high-tech firms, drug makers rely on innovation and intellectual property to generate profits. But tech products frequently involve dozens, if not hundreds, of patented parts and processes. The tech world is a thicket of patents, and companies frequently find themselves on the receiving end of lawsuits by other inventors.