Judge Posner: Do Most Industries Even Need Patents?
from the good-to-see dept
But, more importantly, he gave an interview with Reuters, where he was much more explicit about his concerns with the overall patent system and how it seems to hold back progress and innovation.
This isn't a huge surprise. If you've read Posner's book The Economic Structure of Intellectual Property Law written with William Landes, you'd know that he's long recognized that there are competing forces in the patent system, which could lead it to doing more harm than good. However, it's always appeared as if he came down (just slightly) on the side of thinking they more or less worked. It appears he's now pretty clearly shifted over to recognizing the widespread harm patents do.
Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.
Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents.
"It's not clear that we really need patents in most industries," he said.
Also, devices like smartphones have thousands of component features, and they all receive legal protection.
"You just have this proliferation of patents," Posner said. "It's a problem."
The Reuters report also notes that he specifically let it be known to district courts that he was interested in hearing a patent case. Despite serving on the 7th Circuit appeals court, Posner never gets to hear patent cases, because of our ridiculous system where all patent appeals go to the federal circuit. That's too bad, because it would have been nice to have allowed him to make this ruling at the appellate level and get a real circuit split going to force the Supreme Court to be more aggressive in fixing the problems in the patent system. Either way, it's good to see him speaking out on this and admitting that many industries probably don't need patent protection (hell, if he really wants to explore the drug industry, he may discover that it doesn't need patents either, but that's a whole different post...).