
Judge Posner: U.S. patent system out of sync - sutro
http://www.chicagotribune.com/business/breaking/chi-judge-posner-us-patent-system-out-of-sync-20120705,0,4814825.story
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kenjackson
Posner's right. It seems that there needs to be some new notion of what
constitutes patentability.

Drugs are an interesting case as they have these factors going for it:

1) Expensive to bring IP to market. Lots of testing and clinical trials for
drugs. For SW it is pretty cheap now.

2) Easy and cheap to copy. Generic versions can be reverse-engineered quickly.
Probably just as easy to copy software, but I still feel like this is probably
a useful pillar.

3) The IP by itself constitutes the majority of the value of the product. In
medicine there isn't typically tons of other IP around that come together to
form the product. In SW there is rarely a single piece of IP that is more than
a small fraction of the value of the product.

4) The IP has longevity as a standalone product. Viagra can be sold for
decades. Aspirin still probably does hundreds of millions in revenue. There is
little SW IP that, by itself, has longevity. The nature of SW is to
continuously improve it.

5) Time to market isn't a huge advantage. Since most medicine is just sold as
effectively a commodity, being 6m ahead of your competition usually just means
you have 6 extra months of revenue. Whereas in SW it also means that gives you
6 months to build on your current IP. In medicine you don't typically do
Viagra 2.0, with a boatload of new IP that makes the original obsolete (and
hence any competitors shipping the old version scrambling).

~~~
btilly
People love to cite drugs as being a case where patents work well. But patents
are far from a perfect fit for this problem.

Among other reasons, in an industry that is entirely dependent upon patent
protection to defray the costs of getting FDA approval, it is impossible to
get treatments through the approval process when they are not covered by
patent.

For example somewhere on the order of half a million people in North America
have Crohn's disease. This is a rather nasty sickness that destroys quality of
life, and requires lots of rounds of only marginally effective medication.
Research indicates that hookworm infection is an effective treatment. The FDA
has decided that this treatment requires their approval. But you can't patent
hookworms, and therefore nobody will pay for the necessary tests to get FDA
approval. And so a half-million people continue to suffer.

If the rules were changed to grant a temporary monopoly to the company that
got FDA approval for a treatment, this problem would vanish. A number of known
treatments would go through trials and get approved.

~~~
wccrawford
Is the cost of hookworm testing something that's in the range of crowdfunding?

~~~
ericb
This is a fascinating idea. I feel like the innovation that will have the most
effect on the next 50 years is the kickstarter approach.

------
haberman
As much as I love seeing some straight talk on the patent issue, it seems
dangerous for a judge to have the appearance of injecting his opinions about
what laws _ought_ to be into the judicial process. He specifically requested
to be put on a high-stakes patent case, then immediately threw the case out
and started making public and vocal arguments against patents in tech?

I'd love to see him be our champion for sanity for this system (since our
squabbling legislature can barely keep us from defaulting on our debt, let
alone tackle patent reform), but this just seems to draw a huge target on his
back for complaints of "judicial activism."

~~~
user49598
Laws aren't god given. They are to be interpreted or even ignored by anyone
who finds themselves in the legal system. Thats why jury nullification exists,
and thats why judges have jobs. At the end of the day it's just humans making
decisions about other humans and if your firm belief is not in line with the
law you have the opportunity to express that.

~~~
josephlord
Jury nullification Yes (its a form of direct democracy). Judges making up the
law No (its an undemocratic attack on the rule of law). Interpretation of
ambiguities is one thing but just ignoring parts is not OK. It would leave
everyone with no rules to follow just different judges with different views to
persuade in each case.

If there is a real disagreement between law and what the judge thinks is right
they should rule in favour of the law (but grant sanctions etc. as close to
just as possible). He/she can then publicly complain about the law or run for
congress to change it.

Please note that I am in favour of what the Judge has said but think that if
his ruling stands it is a big change in the law and it is the wrong way to do
that.

~~~
jbooth
Marbury v Madison? Striking down laws has been one of the court's recognized
powers for quite a while..

~~~
josephlord
I'm not American and although I've just read the Wikipedia article on that
case I don't think I fully understand it or it's relevance as it seems only to
apply when they conflict with the constitution which I don't believe is the
case here and is a different matter entirely in my view.

If party A has a valid patent party B must license or work around. I don't
understand why it would be just for party A to have to prove actual damages.
That they have been denied license fees OR elected not to license to retain
exclusivity is surely evidence it self of damage.

Had the judge taken one look at the patents and declared them obvious and
lacking novelty And given the Patent Office an earful I would fully have
approved but to me he seems to have said even valid patents are only
enforceable in limited conditions which should be set out in law.

------
georgemcbay
We don't need patents in any industries at all if you judge them based upon
their original intent -- to further the public knowledge (the temporary
monopoly was meant to be a reward for that, not the main reason for patents).

It is difficult to overestimate our combined ability to reverse engineer
virtually any type of product made these days and in that sense patents aren't
very useful anymore relative to their original purpose.

~~~
StavrosK
Wasn't their original intent to protect the inventor's R&D investment by
ensuring that he would be the sole beneficiary of the invention for a time?

Easily reverse-engineering products makes the initial purpose _even more_
necessary.

~~~
nas
Not as I understand it. The intent was to provide an alternative to "trade
secrets". In exchange for disclosing how your great new invention works, you
get a limited monopoly on it.

Modern patents don't work this way. Seriously, who reads patents to learn who
new inventions work? I'm sure there is someone who does but mostly they are
just dense legal mumble-jumble. Also, it seems most of them are totally
obvious that don't need a detailed explanation of the "invention".

~~~
mistercow
>Seriously, who reads patents to learn who new inventions work?

I do sometimes, actually. But you're right that it's not a very understanding-
conducive format. They're more concerned with making sure the claims are
watertight than making sure the public can figure out what's going on in them.

~~~
gruseom
_They're more concerned with making sure the claims are watertight_

As far as software patents go, if their claims are "watertight" it must be in
some technical legal realm that is utterly removed from the field of
invention. As software designs, the vast majority (that I've seen) are
risible.

------
user49598
One big problem I have with software patents is that they rarely contain any
actual implementation. The whole point of a patent is that society grants you
a temporary monopoly and you give society the intricate details of your
invention.

Many patents these days get the best of both worlds. We give them that
monopoly and they give not a thing back. I say if we're to have software
patents, they need to all include working code. If the code doesn't produce
your patentable idea, no patent.

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WalterBright
As far as I know, before 1989 or so there were hardly any patents on software,
and that didn't inhibit innovation or the breakneck pace of software
development in the slightest.

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shmulkey18
Econtalk has some nice podcasts on IP issues, including patents:

Epstein on Property Rights and Drug Patents
[http://www.econtalk.org/archives/2007/02/richard_epstein.htm...](http://www.econtalk.org/archives/2007/02/richard_epstein.html)

Boldrin on Intellectual Property
[http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...](http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html)

Blakley on Fashion and Intellectual Property
[http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...](http://www.econtalk.org/archives/2010/06/blakely_on_fash.html)

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idspispopd
I don't see patents, or patent defence as a problem. The problem is that
patents are being granted for lowest-bar "innovations", which are leading to
these cases by companies that are merely using it as yet another competition
tactic. In tech we're seeing patent cases are over trivial, often minor,
features which others can accidentally infringe upon without noticing.

Pharma is a different beast, it's much more difficult to have a low-bar
pharmaceutical, usually by the time the work is done the medication far
exceeds the threshold of patentability. (Patent exploitation does still
happen, as others have pointed out with insincere drug enhancements.) It's not
about regulating specific industries(which would be exploited), but rather
about raising the bar on what is indeed an original invention.

The blame for this mess lay on the USPTO. The patent system is being run like
a commercial entity. A granted patent will attract over $5,000 in fees to
USPTO, a rejected patent will only garner $125, with much of the granted fees
attributed to curiously undefined 'maintenance' cost.

<http://www.uspto.gov/inventors/patents.jsp#heading-6>

------
sutro
While it's encouraging that there's a growing awareness among enlightened
individuals like Judge Posner that patents restrict innovation, the problem is
due to get worse before it gets better, because the Patent Office itself
believes that the key problem is that _patents are not being issued quickly
enough:_

[http://www.sfgate.com/business/bottomline/article/Effort-
to-...](http://www.sfgate.com/business/bottomline/article/Effort-to-speed-
patents-new-Silicon-Valley-office-3679837.php)

I'd like to see some organized demonstration and resistance from Silicon
Valley to this new Silicon Valley Patent Office. Patents are a toxic waste
polluting our tech economy, and the feds have decided to increase the flow of
pollution.

~~~
coopdog
I think they're half right, the turnaround time for a decision is too long,
but the solution is surely to turn away the obvious patents on day 1 to get
them out of the queue and discourage further frivolous applications.

The cynic in me says that this is bureaucracy 101, where the bigger the
problem, the more staff you need to solve it, the more staff you need to
manage, the more important you become.. ergo the answer is to exacerbate the
problem rather than solving it.

I've also heard that they don't get paid for appeals, so rejecting a patent is
more work than accepting it, which could also be shaping the landscape.

Either way something is seriously messed up in the US patent office and it's
effecting the world in a bad way.

------
kenster07
A patent holder should -never- be able to ban an entity from using an idea in
one of their products, if our society's priority to maximize quality of life
('if' because it is clearly not a priority for certain entities).

The patent system needs to balance the need for an incentive to invent, with
the goal of maximizing quality of life. The current state of the American
patent system stagnates society on multiple levels:

1) Patents, in too many cases, are a prohibitive barrier to entry for
entrepreneurs. We have a system in which entrepreneurs know that if an
adequately wealthy corporation were to knowingly file frivolous patent
lawsuit, the cost, time, and energy to defend such a lawsuit could threaten
the life of a fledgling business. Such a system can only have a chilling
effect on entrepreneurship and economic growth. Trying to improve the world
should -not- feel like walking on a minefield, and until that is fixed, our
economy is not receiving the full benefit of its entrepreneurs.

2) Another inventor may be able to use a patented idea as a component for a
broader, more useful (patentable) idea. A patent holder should not be able to
prevent the development of innovations based upon their own.

3) In many cases, the inventor is not the best producer of his own invention.
Society, as a whole, is best off when the best inventions can be produced by
the most capable producers, and a patent holder should never be able to
prevent this optimal economic arrangement.

American society generally values creativity far more than productivity, as
reflected not only in its patent system, but in its popular culture, heroes of
industry, etc. But in terms the health and sustainability of society, and
economic output, productivity is at least as important. If Americans don't
collectively acknowledge this, broader economic, and ultimately geopolitical,
consequences will continue.

As a minimal solution to reverse these trends, I would suggest that patent
holders be stripped of the ability to prevent others from being able to use
their ideas in a product, but should be able to retain the ability to charge
reasonable royalties. Thus, our society may be able to approach a healthier
balance between its need for innovation and production.

~~~
MBCook
Compulsory licensing may help in some areas, but the way things are going in
the computer industry I don't think it would be enough. Even if you only
charge $0.05 per unit, that can still be a big problem.

How many ridiculous software patents do you think something like a common
smartphone must infringe on. If you infringe on 100 patents ("ability to tap
on icon", "drag gesture to move things", "method for turning down volume",
etc.) that's a $5.00 cost per phone. A low end phone may only cost $200
unsubsidized. If you only make $30 per phone, that's over 15% of your profits.

The core issue still exists. None of this would be as much of a problem if
software patents were required to be much better defined and extraordinary,
were granted faster, could be invalidated with prior art or independent
invention, didn't last as long, and there was some sort of damage limit.

Right now, if the iPhone infringes on some patent that objectively covers
0.02% of the software on the phone, the patent holder can still go after tons
of money. The damages aren't tied to the utility.

If Apple won the slide to unlock patent, and (due to the scope) could only win
$0.001 per Android device sold... would they have still done it? What if
(again, due to scope) they couldn't get an injunction on something so small?

~~~
kenster07
You raise an important point: the patent system absolutely must only award
patents to significant, legitimate innovation.

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TwoBit
I wonder if this is going to cause some companies to throw money at
politicians to get rid of Posner.

~~~
gersh
He has a lifetime appointment as a judge. Only 9 judges have ever been removed
in the history of the country. It isn't likely that he will be removed. They
can just appeal his decisions.

~~~
TwoBit
Sure, but they can still steer cases away from him, no?

~~~
gersh
His appellate court has jurisdiction over the federal courts in Wisconsin,
Illinois, and Indiana. The chief district judge assigns cases. The chief judge
designation is based upon seniority, and all of the district judges have
lifetime appointment as well.

------
josephlord
I largely agree with Posner about what the law should be but I have a feeling
that he might be overturned on appeal for not following what the law is.

Valid patents are meant to grant the owner an exclusive right to manufacture
or licence the technology described. Until this case I've not heard the theory
that you can commercially use the patented technology without a license if the
other side can't show damages.

In my view Google should have been given a little time to work around the
patent but to have been required to do so. Actually the only way the law is
going to get changed is if it properly enforced and its ridiculousness is made
obvious to the public.

------
DigitalSea
most industries? No. Some industries? Yes. I am a firm believer that patents
do not belong in software at all. They're used to litigate not innovate and
how often has a developer truly come up with a software technique that isn't
in some form prior art? Most of the things that Oracle was arguing in the
Google case were in-fact techniques that have been used in mathematics long
before programming ever became a viable choice as a career (the rangeCheck
point in the case is a prime example).

I think patents should only be for actual products, something you can hold in
your hand. People like Apple trying to patent things like slide to unlock are
idiots, you shouldn't be able to patent a movement.

As it has been shown many times, software patent litigation is a joke. Patent
something real or GTFO. Look at people like James Dyson the dude has tonnes of
patents all mostly on real products and techniques for doing unique things in
the case of Dyson suing for competitors stealing his patented methods of
cyclonic vacuum cleaners that's a real patent lawsuit right there, not arguing
over whether or not a swipe is a zero length touch.

~~~
dk
Actually Oracle only made two patent infringement claims against Google --
rangeCheck wasn't one of them -- and Google didn't argue prior art against
either of them.

ETA: They argued non-infringement.

~~~
felipeko
Just for correctness, Oracle made 7 patent infringement claims against Google,
and was left with only 2 by the time of the trial because of the
reexaminations.

And Google didn't argue invalidity because they agreed (to streamline the
trial).

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Agathos
Kind of funny that the Chicago Tribune turns to Reuters to report the opinions
of a man who lives in Chicago.

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monochromatic
Regardless of where one stands on questions of patent policy, it is ridiculous
to praise a trial judge for ignoring binding precedent.

(Yes, I know Posner is an appellate judge. He was sitting by designation as a
trial judge in Apple v. Motorola.)

~~~
brlewis
Are you saying he ignored binding precedent in his court opinion, or in what
he said to the press?

I'm inclined to accept grellas' assessment that Posner's court opinion was on
solid ground: <http://news.ycombinator.com/item?id=4086642>

------
EGreg
I wrote this about software patents:

<http://news.ycombinator.com/item?id=2948724>

------
EGreg
Software patents may indeed be unnecessary largely because software already
receives copyright protection.

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antidoh
Patents are for inventions, but software patents are used to insulate whole
products from competition.

------
aangjie
Ok any TLDR versions? out of sync with what? what should it be synced to? Am
generally not a fan of IP, but don't have time to read through the Original
article.

------
littlemerman
Posner is awesome.

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Fando
Amen to this man!

------
gringomorcego
Patents and IP protection are a sovereign prisoner's dilemma.

Good luck with that, USA.

~~~
dstorrs
You do realize that Tit For Tat is the dominant strategy of PD, right? [1]

[1] Ok, not strictly true. Other strategies can dominate under certain
conditions (finite and pre-known number of iterations, possibility of signal
error, etc) but I don't feel that those conditions apply in this case.

~~~
gringomorcego
This prisoner's dilemma has one round with different rewards.

Also, don't correct people with 'you do realize' because it makes you seem
like an asshole.

------
lwat
I really do think we'll be better off on average scrapping patents in ALL
industries. Sure there's some positives in patents but the negatives far
outweigh them in my opinion.

~~~
colinshark
There is one industry that is similar to software, but it has absolutely no
intellectual property protection besides trademarks.

It's the fashion industry.

It moves at a breakneck pace. Nobody claims the fashion world is dying or
moving too slowly because of lack of legal monopoly protection. The
competition is fierce, and consumers are rewarded with many great options.

I'm sure other industries would do fine without patents.

~~~
adavies42
Home sewing is killing fashion!
[http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewin...](http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewing.svg)

