[Esp-action-alert] The Solution To Posner's Patent Problem

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[Esp-action-alert] The Solution To Posner's Patent Problem

From:	esp-action-alert
Subject:	[Esp-action-alert] The Solution To Posner's Patent Problem
Date:	Fri, 20 Jul 2012 01:59:34 +0100

Online version: http://news.swpat.org/2012/07/posners-problem/

The solution to Posner’s patent problem

Richard Posner, a very influential US judge, has written an article
about the current patent system’s problems and their causes. The
article provides useful support for many software patent abolition
arguments. He unfortunately closes with suggestions which are unhelpful
or even counter-productive (with the exception of his suggestion of a
shorter duration for some domains, which I discuss below). In
particular, his suggestion of giving more resources and power to the
patent office would be a catastrophe. What we really need is to rein in
the patent offices and remove their power to grant software patents.
(And this would have the side-effect of reducing their workload and
thus easing their resource problems.) Here’s his article:
[1]Why There Are Too Many Patents in America.
http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/

It’s a pity. The build-up of his argument seemed to be leading straight
to a conclusion that patents shouldn’t be granted in domains where
research and development are cheap (compared to pharmaceuticals):

the need for patent protection in order to provide incentives for
innovation varies greatly across industries. [...] Most industries
could get along fine without patent protection. [...] I would lay
particular stress on the cost of invention. [...in industries
where...] 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.

Framing the discussion in terms of "industries" also propagates a bias
by ignoring the problems caused to developers who are not part of the
relevant industry. While it’s true that large scale production of
pharmaceuticals and cars is exclusively done by industries, software is
developed by a mix of industry, hobbyists, user communities and people
in other domains who develop software incidentally as a means to
getting their other work done. And it’s the non-"industry" developers
who are most vulnerable when attacked by a team of lawyers. A good use
of "industry" could be: patents should only exist in domains where
production is exclusively an activity of industry.

The first measure Posner mentions for alleviating the problem is to
reduce the patent term for inventors in certain industries. If he means
reducing the term to 3 or 5 years for patents on software, then that
could indeed be a big win. To do this, a government first has to
declare that software ideas are not eligible for normal patents (the
kind defined by [2]TRIPS) and then create a new type of short patent.
However, the examination procedure would have to be much faster, which
brings a risk of much lower standards and thus an explosion in the
number of software patents. Part of the benefit would also be undone by
software monopolists adapting their tactics and updating their media
formats and communication protocols more frequently so that the formats
in wide use are always under patent control.

In summary, if this gets handed to us we should be very happy but it’s
not a complete solution, it’s not easy, and in terms of effort it’s a
detour rather than a stepping stone to where we have to go.

Posner’s other suggestions are less hopeful. He suggests getting rid of
jury trials, and better training for judges. That might help invalidate
more of the wrongly granted patents, thus reducing the number of
patents somewhat, but that won’t change much (until patents on software
ideas get classified as wrongly granted). Take the very popular H.264
video format for example. The [3]MPEG LA cartel manages a portfolio of
346 patents in the USA alone which it claims are necessary for an
implementation of that video format. Reducing that number by 50% would
change nothing for developers of video software. It would still be
covered by a big thicket of patents.

Worse, he then suggests giving more resources to the patent office and
giving it the additional power to hear patent infringement cases. The
patent office has a financial interest in granting as many patents as
possible, so increasing their resources would probably result in an
increase in patents granted. Giving the patent office the competence to
hear infringement cases would mean that disputed patents would be
reviewed by the same biased organisation that granted them in the first
place. This would be disastrous.

That said, it’s encouraging to see that he has a good understanding of
the roots of the problem, and that he agrees that different domains
should be treated differently. The US Supreme Court’s [4]Bilski and
[5]Mayo rulings also show that certain judges understand that something
has to change. We have to keep explaining that abolition is necessary
and smaller solutions just don’t work.