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in reducing its costs as it becomes more experienced at producing and marketing the product; or the product will be superseded soon anyway, so there's no point to a patent monopoly that will last 20 years; or some or all of these factors are present.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.