Judge Posner On A Mission To Fix Patents; We Have Some Suggestions

from the preach-it dept

It’s really great to see that Judge Richard Posner has decided to take on our broken patent system in a big bad way. He’s had a long-term interest in intellectual property (and even wrote a very good book on the subject, which I keep on my desk), but he’s rarely had to rule on patent issues, in part because of our ridiculous setup in which all patent cases are funneled to the Federal Circuit, which historically has been “captured” by patent expansionists (including some former patent attorneys, at points). However, Posner made it clear to a nearby district court that he was interested in maybe heading over to hear a patent case if one arose, and he got a big one: a key patent battle between Apple and Motorola over smartphone patents. As you probably know by now, he dismissed that case with prejudice, and slammed both parties in the process.

While the dismissal was technically over failures in how the damages calculations were done, the rulings and statements he made certainly hinted at the failings of our patent system. Since then, he’s not held back on the issue, giving an interview where he questioned the need for patents in “most industries.” And, now, he’s written an opinion piece for The Atlantic, in which he explains that there are too many patents, and that the system is broken. Basically, he dives in and explores his earlier statements that few industries probably need patents. He starts out by explaining why he thinks patents work in the pharma industry (something that I’m not sure is really true, but let’s accept it for now), and then notes that the conditions that make patents work there simply don’t apply to most other industries:

But few industries resemble pharmaceuticals in the respects that I’ve just described. In most, the cost of invention is low; or just being first confers a durable competitive advantage because consumers associate the inventing company’s brand name with the product itself; or just being first gives the first company in the market a head start in reducing its costs as it becomes more experienced at producing and marketing the product; or the product will be superseded soon anyway, so there’s no point to a patent monopoly that will last 20 years; or some or all of these factors are present. Most industries could get along fine without patent protection.

The key thing that he realizes — which many patent system supporters ignore — is that for patents to make sense, you have to have a situation where the invention wouldn’t otherwise be created. But in a dynamic industry, where there are many normal incentives — innovation to beat the competition, for example, or merely innovation to build a better product for you own needs — it’s not at all clear why patents are needed. In fact, because every single party other than the one who gets the patent is blocked from making use of their own efforts, the patent system creates a massive amount of waste. Sure, the “first” one to get to the patent office gets “ownership,” but every other person is denied ownership of their own innovation.

In an industry in which teams of engineers are employed on a salaried basis to conduct research on and development of product improvements, the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant. It is true that the easier it is to get a patent, the sooner inventions will be made. But “patent races” (races, induced by hope of obtaining a patent, to be the first with a product improvement) can result in excessive resources being devoted to inventive activity. A patent race is winner take all. The firm that makes an invention and files for a patent one day before his competitors reaps the entire profit from the invention, though the benefit to consumers of obtaining the product a day earlier may be far less than the cost of the accelerated invention process.

He goes on to discuss the problems of the way the court system handles patent cases, noting that judges don’t understand technology, and juries are even worse. Yet, most patent trials demand a jury trial, and juries quite frequently side with the patent holder, “believing that they must be worthy inventors defending the fruits of their invention against copycats — even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing.”

He goes on to highlight a few other issues, including the terrible job the Patent Office does in reviewing patents. He notes that the examinations are “perfunctory,” and that this has resulted in way too may patents being issued, which only exacerbates the problem. I actually think he understates it there as well, because the more patents are granted, the more likely you are to get bad patents, and with bad patents come bad decisions and massive victories for some useless troll. And that just encourages people to apply for more bad patents, which overloads the system even more.

Posner has some suggestions, some of which I think might improve things a small amount, some of which probably won’t. While he definitely recognizes that there’s a problem, I’m not convinced he’s really gotten to the heart of it yet — though I’m hopeful that will come, as he spends more time on the subject. Here are his suggestions:

reducing the patent term for inventors in industries that do not have the peculiar characteristics of pharmaceuticals that I described; instituting a system of compulsory licensing of patented inventions; eliminating court trials including jury trials in patent cases by expanding the authority and procedures of the Patent and Trademark Office to make it the trier of patent cases, subject to limited appellate review in the courts; forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent; and (what is beginning) provide special training for federal judges who volunteer to preside over patent litigation.

I know there’s a lot of support for that first suggestion, and I definitely can see how it might be helpful, but it does feel like a cheap way out to just “carve out” certain industries. It’s treating the symptoms, not the problem. Also, if that happens, I’d bet that patent lawyers will quickly work out loopholes and workarounds. The compulsory licensing system, again, seems like an iffy suggestion. Beyond the fact that some might deem it unconstitutional (because the Constitution specifically says that patents and copyright are about the right to “exclude” — and a compulsory license eliminates that), it still does keep the same basic friction. It certainly wouldn’t stop patent trolling or bogus patents. Eliminating jury trials might be helpful at the district court level, but many of these cases end up on appeal anyway (and, again, some might debate the legality of taking away the right to a jury trial).

The idea of expanding the authority of the USPTO to make it the place where patent cases are heard has a pretty big problem, in that the USPTO tends to be very pro-patent already, and you’re basically asking it to police itself. Requiring a patentee to produce the product is an idea that I know has a lot of support around here, but I’m not convinced that it makes sense. You could see situations where someone really does just focus on ideas/research and wants to pass those on to others to make. Perhaps a slight adjustment to that would be not that the patentee has to produce the product, but that they have to either produce it themselves or partner/license to someone who is producing it. Finally, I also worry about the suggestion of “special training.” Because who’s going to do the special training? Chances are, it’ll be patent attorneys. It’s not going to be software geeks. We’ve already seen what happens when we have “specialized” judges. It’s called CAFC, and it massively expanded patents.

So what might actually be effective? Here are a few of my own ideas that I hope Judge Posner will consider at some point:

  • Independent invention defense. In his article, he even mentions that copyright already (effectively) has this. Copyright infringement has to involve copying. Patent infringement does not. The fact that so many patent infringement cases involve independent invention is lost on most people who don’t understand the system. Adding an independent invention defense would fix a very, very large percentage of the problems with the patent system today.
  • Independent invention as evidence of obviousness. This is very similar to the idea above, but slightly more nuanced. Patents are only supposed to be given if something is both new and non-obvious to a person of ordinary skill in the art. For the most part, patent examinations focus much more on the “new” part, and not whether the idea is “non-obvious.” Some people think that if an idea is new then clearly it’s non-obvious, but that’s not the case. Often there are obvious ideas that don’t go anywhere because the technology/market/etc. just isn’t ready yet. But if a number of different people “of ordinary skill in the art” are all coming to the same solution at around the same time, that certainly suggestions the invention itself is an obvious next step, and all such patents should be declared invalid.
  • Actually asking those skilled in the art. Patent examiners are often very skilled and highly educated, but they’re working in the patent office, not out in the field innovating. It’s not as easy as many people think to really keep up on the state of the art if you’re not working on it. Just think how many ridiculous patents we see all the time. Many of those bad patents could have been prevented if a patent examiner just went to people in the field and asked them. I know that some people criticize this idea, because they claim that (1) everything looks obvious in hindsight and (2) this will just lead jealous others to insist something is obvious to deny a patent, and then copy the idea themselves. Neither of these are convincing. I’m not saying to just ask, and if someone says it’s obvious, the patent is dead. Rather, the patent examiner could ask a few people for an explanation of why it’s obvious, and then determine if the reasons are convincing. Already, inventors effectively have “advocates” who argue for them that a patent is valid, so why not create the same sort of thing on the other side — setting up a true adversarial process — by seeking out experts who can explain why something may be obvious.
  • Get patents going back to the different circuit appeals courts, rather than funneling them all through CAFC. Having a single “patent” appeals court was an experiment, and I think it’s clear that it’s failed. The court, constantly spending time with patent lawyers, but not with innovators, clearly has an expansionist view of patents, and multiple judges refuse to recognize that patents could have any downside. Spread the cases around a bit, and hopefully you get some more judges who get past the cover story and see the real problems.

There are some other suggestions that I think might be helpful at the margins. But these suggestions would help address many of the biggest problems with the system today.

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Comments on “Judge Posner On A Mission To Fix Patents; We Have Some Suggestions”

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BentFranklin (profile) says:

Already, inventors effectively have “advocates” who argue for them that a patent is valid, so why not create the same sort of thing on the other side — setting up a true adversarial process — by seeking out experts who can explain why something may be obvious.

Yes, there definitely should be an advocate for the public’s ownership of prior art.

Anonymous Coward says:

Re: Re: Re:2 Re:

…instead of going for a lawless legal system.

We already have a lawless system.

Under the Obama administrition, the Attorney-General blithely proclaims the executive power to target American citizens for killing. On the President’s say-so alone?anywhere a drone can fly over the “global battlefield” in the “war on terror”.

That concept strikes the rule of law dead in its tracks.

blaktron (profile) says:

Re: Re: Re:

The US political system was designed SPECIFICALLY to allow for ‘activist judges’. They are firmly a branch of the government, and their writ is just as much law as an executive order. I dont understand how your right wing has managed to make that into a bad thing. Also, under the checks and balances, a law is only the law if a judge says it is, otherwise its just a bill thats been passed by congress and signed by the president.

Anonymous Coward says:

Re: Re: Re: Re:

No, you misunderstand the power of the judge. Judges deal with cases in an impartial manner, and when presented with something that violates the constitution, as an example, they can declare the law in violation, and suspend it’s application.

“a law is only the law if a judge says it is”

Only if a specific case is in front of the judge. They are not required to sign off on a law for it to be law.

Plus, there are all the appeals processes that come after such a judgement, until it hits SCOTUS. Judges are NOT law makers, they are judges.

Anonymous Coward says:

Simpler idea

Abolish the entire patent system and start over from scratch.

You say the pharmaceutical companies need a patent system? Fine, there can be a sui generis pharmaceutical patent system, tied in with FDA approval and regulation.

Everyone else? No free riding on the contributions that the pharmaceutical companies have made to the debate! If your industry needs monopolies, then make your own argument.

Abolish the whole thing and start over.

shawnhcorey (profile) says:

Re: Re: Simpler idea

Agreed. Patents are not needed in any industry.

Patents are not needed by pharmaceutical companies since the only research they fund is to modify their own drugs so they can get another patent on a variation when the current patent runs out. (And, of course, nobody else can get a patent on any variation because its too close to the original.) Funding new drug research comes from grants from the gov’t or other outside organizations.

Andrew (profile) says:

What about Posner’s idea for “forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent”? I can certainly see problems drafting it (how many products have to be produced, for how long, in which markets, could it be ‘hidden away’ as an unnoticed part of another product, does anyone actually have to buy them, etc.), but the concept is appealing.

artp (profile) says:

Re: Same requirement as in Trademark Law

So the companies get around it by “making” one batch of product per year. They never sell any of it, though.

So what we need to do is require them to “sell” it to anyone who wants to buy it, within a reasonable range of the cost of production.

Going even further, apply the same thing to copyright. If they aren’t willing to sell copies, then it obviously isn’t worth anything, and there is no damage done by taking away the copyright monopoly. Use it or lose it!

I’d love to buy DVDs of the TV series Maverick. But the studios are upset at James Garner for taking them to court to make them pay him the royalties that they owed him (sound familiar), so the series hasn’t been available for years. I heard that Season 1 is on Amazon now, but they have flirted with making bits and pieces available before and never finished the job.

PT says:

Re: Re:

It shouldn’t be difficult to implement this. I would exempt the original inventor named on the application, but if the patent is assigned, sold or otherwise transferred to another party it would need to be reduced to practice (ie an example made) within, say, 2 years. This single requirement would be beyond the capability of the vast majority of patent trolls.

Brent (profile) says:

eliminating court trials including jury trials in patent cases by expanding the authority and procedures of the Patent and Trademark Office to make it the trier of patent cases..

Mike disagreed with this suggestion and i see his point but i think Posner was thinking more long term. I think his hope was that by expanding the authority and procedures of the PTO, the PTO would end up overhauling the entire patent process. This would result from being overwhelmed by their new responsibilities and would force them to look ‘down the line’ to see exactly where the kink is (at the initial patent review and approval process). So basically, his suggestion is just a way of forcing the PTO to clean up their own mess.

Ninja (profile) says:

I agree with all your suggestions Mike but I also agree with the judge when he says that it should be mandatory to manufacture/implement the patent within a defined time frame (a third party could do it contrary to what the judge suggested). I do think that there could be some intermediate way to ‘secure’ the ‘first’ status. I also believe that there could be ways for multiple independent creators to patent the same idea (up to a limit when it’s considered obvious and with applications within a determined time frame from the first one to apply for the patent).

These are ideas though, I’m not sure how to make it operational.

Doug Wheeler (profile) says:

Asking those skilled in the art

To offer an alternative to your fourth bullet point:

It should be a simple matter to put together a pool of individuals “skilled in the art” and present them with the problem that a patent perports to solve (without actually presenting the “solution). You then ask them to come up with possible solutions to the problem (brainstorming is encouraged). Any ideas that this group comes up (in a reasonable amount of time) with are “obvious” (obviously!) and shouldn’t be patentable.

Just because something hasn’t been patented doesn’t mean it isn’t obvious, it just may mean that no one else has been presented with the same problem to solve.

ahow628 (profile) says:

Re: Asking those skilled in the art

An even more elementary benefit to asking those “skilled in the art” isn’t that they’ll explain why it’s obvious, but that they will simply say, “Someone is already doing it.”

It seems like many people assume that if you patent something, that is the first time it has ever happened. What a ridiculous assumption!

Anonymous Coward says:

I think a number of problems with the patent industry stem from the length of patents. Were they shortened considerably a number of ridiculous lawsuits would not have happened. Especially in the tech industry where innovation and movement are quick. With that in mind I think we can also bring in line with the original goal. Lets say if you don’t include a specific implementation with your patent (source code, blueprints, what nots) then you get a very short patent (lets say 3 years). If you provide the extra info you get a longer patent (5 years). However, with the 5 year patent you can no longer sue for implementations that don’t meet with your exact implementation thus hopefully eliminating broad patents.

OldMugwump (profile) says:

Time from Problem to Solution as a defense

To qualify as non-obvious, an applicant should be required to show that the invention solves a long-standing (not recent) problem which other people have had ample opportunity to solve, but have been unable to.

Too many modern patents are obvious solutions to new problems which either never existed before (because a new technology raises new problems) or which only recently became solvable because of new technology.

For example, sending voice over the Internet is obvious once you have an Internet. Nobody should get a patent on that just because they were the first, as this is obvious. Heatsinking a LED for domestic lighting is obvious ? no patent should issue simply on the basis that nobody did it before, as that is because LED use for domestic lighting is a new application, and therefore the problem never came up before.

ohrn (profile) says:

Independent invention.


You always put a lot of emphasis on allowing independent invention as the most important part of fixing the patent system.

Can you elaborate how this defense is supposed work, because I don’t see it unless it is also combined with other reforms like shortening patent terms, capping damage awards and abolishing the CAFC.

When your fresh new product gets hit by a patent troll with it’s coffers full of 10-15 year old patents they will most certainly argue that back in 1998 this was cutting edge research, it’s because of us and our hard work the state of the art progressed, after all a patent is about publishing and educating the world about the concepts embodied within it.

In short, it’s thanks to the troll that you were able to come up with that fine product “on your own” last year. Being all hot for patents the CAFC will lick it all up and award billions of dollars in damages.

Even if you prevail over the troll, with all the publicity of a court case, no one else can claim ignorance of the invention after that so the independent defense will only let one inventor across the bridge. The troll will have a guaranteed lock-in against the rest of the industry wanting to use the tech for a nice 5-10 years depending on the timing of the lawsuit.

I think shortened patent terms is a much more important reform, that will make all the junk patents moot quicker, and it can give independent invention some actual teeth since with a shorter time window it’ll be much easier to show that you where truly independent and not reliant on technological progress (directly or indirectly) initiated by the troll.


Andrew F (profile) says:

Re: Independent invention.

Not Mike, but to respond to some of your points:

When your fresh new product gets hit by a patent troll with it’s coffers full of 10-15 year old patents they will most certainly argue that back in 1998 this was cutting edge research

Sometimes true. But this is actually a feature IMHO. This solves the variable patent length problem — i.e. what gets 10 years? What gets 20? If your invention is novel now, but will be so obvious in ten years that anyone can independently invent it, then you effectively get a 10 year patent.

I’d argue that this would more efficiently “promote the progress.” Under the current system, the incentive is to make small incremental advances, because they’re cheaper yet still get the same patent protection as larger advances. With an independent patent defense, the amount of protection would scale with the magnitude of the advance, thereby rewarding larger jumps.

In short, it’s thanks to the troll that you were able to come up with that fine product “on your own” last year.

Maybe. Let’s suppose the troll’s publication actually contributed some indirect insight. One compromise is to permit juries to scale patent damages accordingly. So if the troll’s insight contributed to 1% of your product, they get only get 1% of the award they normally would.

Some folks might say that whatever percentage the jury picks is somewhat arbitrary, but juries do this all the time already and it works well enough. For example, in most states, if there’s a car accident between two drivers, a jury can decide that one driver is 60% at fault and the other 40%, and divide up damages accordingly.

Even if you prevail over the troll, with all the publicity of a court case, no one else can claim ignorance of the invention after that so the independent defense will only let one inventor across the bridge.

This conflates notice of a patent with notice of the actual invention. Patent holders often point out that the specifics of a patent are often more complicated than the one-liner the press assigns to them — e.g. Apple might say that while “universal search” has been around for a while, what makes their patent novel is a non-relational database scheme, dynamic linking, insert-technical-jargon-here.

An independent invention defense lets the inventor flip that argument on its head — why yes, I was aware that Apple has universal search in the iPhone, but universal search been around forever. What makes it special in my product is this technical implementation that wasn’t disclosed by all the press reports surrounding the lawsuit.

Another approach, and one Mike sometimes suggests, is that independent invention is really just a proxy for obviousness. In that case, if you win independent invention, you win obviousness, and that kills the patent, thereby letting everyone across the bridge.

Nick Coghlan (profile) says:

Re: Independent invention.

While there would still be a lot of dross to clear out, one key part of an independent invention defence is that “Will this prevail over an independent invention defence?” will become one of the questions companies ask themselves before going to the expense of filing for a patent.

One part of fixing the examination process is to get companies to stop filing for patents that they know are rubbish because proving obviousness is often more expensive than just taking a license for a bogus patent. If there is an onus on the patent holder to prove “they copied our idea” rather than “they had the same idea we had”, then getting a patent just for the sake of having the patent becomes significantly less attractive.

staff says:

more dissembling by Masnick

‘he questioned the need for patents in “most industries.” ‘

The Constitution says ?To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries?.

Posner must have skipped his constitutional law classes, or slept through them. It sounds like he’s still sleeping.

Spaceman Spiff (profile) says:

Patent, patent, who's got the patent?

Well put Mike! I especially like your point “Independent invention as evidence of obviousness”. That’s a QED point as far as I’m concerned!

P.S. I hold a US patent for adaptive systems (software). It was a serious problem that had never been solved, and no other equivalent solutions have been invented. It’s implementation is now used to customize off-the-shelf software for manufacturing industries without programming. However, MANY other software patents are simply bogus!

So, what I am saying is that patents for hardware, software, or whatever are not the issue. The issue is whether or not they really meet the dictums of the law. Many software and design patents “patently” do not!

jay says:


Really now senators and congressman writing letters to the judge about loss of jobs 18,000 and 11,000 and this gives a company the license to steal patents that were intellectual property for over 10 years.What kind of system allows companyies to steal. Heck we can,t steal airways with satillites ,yet TV and tecnology was and is obivious so whyy are we paying for caple,and dish technology.Its obivious.
Little companies have no chance and these giants cry loss of jobs. How about these compaies being honorable and these expensive law suits would vanish.

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