Ahh, Bessen. Interesting that he cites his own "trolls cost $29B" study [1] without mentioning that it's been "called into question" [2, 3, 4] to put it diplomatically. It's not like he's unaware of criticism of his work either, since he has responded to criticism in the past [5].

And par for the course, this article of his has several flaws as well:

1. Giving examiners the power of irreversible rejection is pretty bad, if you think about it. Valid patents are regularly rejected for the very same reasons that people argue invalid patents are allowed. Contrary to popular belief, if examiners are overworked and lack enough time, their default reaction is usually to reject the application. I have seen many a BS rejection issued because the examiner just wanted to meet his quota. And I'm not even a patent agent or lawyer!

2. (Nitpicking) Continuations are not the only way to continue examination after a rejection. You can also file for a Request for Continued Examination (RCE) and continue prosecuting the same application.

3. Continuations are a very valuable tool and not just fodder for abuse. Like TFA says, it allows applicants to claim multiple inventions off a single patent application. But that is often what happens! A single invention could have multiple facets that are inventions in their own right. As a random example, a lightbulb that uses tungsten filament and bulb with an inert gas could actually be three inventions: a) the material being used for the filament, b) the use of an inert gas in the bulb, and c) the combination of both that creates an even longer lasting bulb! What may happen is you file a patent for the combination but may realize each aspect is valuable by itself, and you may later want to claim them separately.

And sometimes, this is not in your control. A patent is allowed to only claim a single invention. An examiner may look at your claims and decide that they cover two (or more) separate inventions, and issue a "restriction", which essentially forces you to choose one invention to continue. If you still want to protect the other claims, you have to file a continuation.

And even further: Companies regularly dump hundreds of pages of technical specs (or a professor dumps a dozen papers) on to a patent lawyer and ask them to file on all the inventions covered in there. Sometimes this happens under a pretty tight deadlines (e.g. the product has already been on sale, or the papers published, for almost a year, which puts a bar on when a patent can be filed). In that case, lawyers write up one gigantic spec, slap on claims for whatever they think is the invention, and file it. Over time, they can then sit the inventors down and hash out the real invention and cover them in continuations.

4. I looked at the file wrapper for the Apple patent. "continuous" was not the only word added. Almost a third of the claim was amended to make it more precise of what they were claiming. I personally don't think this is a stellar patent, but such misinformation must be pointed out.

5. Strangely (or maybe not so strangely) enough, academics who write so much about patents have no idea how examination actually happens, or even how patents even work. To show invalidity, an examiner must show a one or more references that completely cover each and every element of the claim. If they cannot, no matter how obvious it seems to us, they have to allow it. The reason for this is that the decision must be an objective one, and all our opinions are inherently subjective. Supporting a rejection with previously published information, which is a recorded fact, is the only currently known way of doing this objectively.

6. Bessen implies other countries don't have patent litigation problems because their examiners can issue an absolute rejection. First of all, I highly doubt that is the case - there always avenues of appeal. Secondly, he ignores the legal environment in other countries, such as "loser pays" in EU, which tend to discourage lawsuits in general, not just frivolous ones. Thirdly, this makes no difference in the quality of patents - I have seen a ton of US patents and their international counterparts, and they pretty much all have the same claims. And they can all be just as each other. Nokia actually prevailed in some lawsuit in the EU over a patent that claims, without (much) exaggeration, pausing downloads when something more important is to be downloaded.

7. Rambus, as underhanded as their FRAND patent shenanigans were, was not a patent troll. By this standard, all fabless semiconductor companies would be patent trolls.

1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210

2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421

3. http://blog.patentology.com.au/2012/06/29-billion-us-troll-t...

4. http://gametimeip.com/2012/07/30/patent-scholars-challenge-b...

5. http://www.researchoninnovation.org/hahn.pdf