Judge Posner: Do Most Industries Even Need Patents?

from the good-to-see dept

We've already covered esteemed Judge Richard Posner's vehement dismissal of Apple's patent infringement case against Motorola. While we, and many others, had noted Posner's caustic remarks concerning the abuse of the patent system, patent system defenders tried to play his arguments down as merely being concerned with the damages calculations (the technical point on which he dismissed the case). However, Posner recently seems to be taking an even stronger stance. First, even after he dismissed the case, he released an order spanking Apple, though even he notes in the order "The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email."

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.

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."

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.

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...).

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  1. icon
    Pangolin (profile), 6 Jul 2012 @ 6:03pm

    Re: Re: Re:

    Don't misunderstand. I'm not saying a transformative, improved work should be prohibited. It should not. A DIRECT COPY with or without Minor Modifications just isn't fair.

    The PURPOSE (which has been PERVERTED) of the system was to protect my company which researched, created, produced and most importantly SOLD a gadget from being copied directly by someone who is just a copycat and did no innovation. The purpose is to SPUR innovation not stifle it.

    The present system allows someone to "patent" and IDEA - an abstraction that isn't used as a product at all and isn't even produced and then profit from said IDEA by using the legal system. That STIFLES innovation. I'm not for that at all.

    IF a company happend to patent something and then produced a product and for whatever reason discontinued production -- that patent should be up for grabs for at least a license that cannot be denied by the patent holder so that it can continue to be produced.

    I think the solution to the problem is to disallow software and business model patents and only allow them on produced physical goods.

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