Now in general, the way we deal with invalid patents is by making them vulnerable to challenge after issuance that is why heightening the presumption of validity matters so much. But even if we put that problem to one side, post-issuance challenge may have limited value in the case of business method patents. Court decisions on patentability tend to be highly subjective they receive coloration from the field to which the art pertains and from the familiarity that decision makers have with that field. At the same time, they hold patents valid in areas that they do not understand, in areas that are esoteric and technical. Most troubling, there is huge potential for significant market distortion during the time between issuance and ultimate invalidation.
Patents have in terrorem effects no one goes out to buy a lawsuit.
Patents may also provide inefficient businesses with insulation during industry shake outs. Furthermore, even very temporary advantages can be enduring. Not surprisingly, Amazon has enforced this patent vigorously. That means that everyone who wants the convenience of one-click must currently shop at Amazon. Now, the issue of the patent s validity has yet to be litigated.