
Richard Posner: Why There Are Too Many Patents In America - joshuahedlund
http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/
======
grellas
This piece amounts to a red alert signal from a distinguished judge to
Congress that it needs to fix some pernicious elements of the U.S. patent
system and that it needs to do so _now_. The tone is judicious but the message
is essentially alarmist: the system is seriously out of whack and Congress
needs to get on with fixing it.

Judge Posner admits he is no expert on what the fixes should be and his
tentative suggestions for fixing the system are, in my view, decidedly mixed
on their merits (e.g., specialized adjudications before the USPTO - remember
when it was suggested that a specialized appeals court would improve the
patent system and the result was a court that has been so maximalist in its
approach to patents that it has in itself become a significant part of the
problem).

So where to begin?

Legally, it has to go back to fundamentals and, for me, this has to go back to
the scope of patentable subject matter and whether this should be defined to
include software at all.

The Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl.
8) provides that the Congress shall have the power "to promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries."
Note that, in defining this as one of the enumerated powers of the federal
legislative branch, the Constitution does not mandate that the legislature
provide for patent protection of any sort. It merely permits the exercise of
such a power within constitutionally prescribed limits. Thus, any legitimate
exercise of patent authority in the U.S. must come from Congress and must
respect the constitutional bounds that any grant of patents be for "limited
times" and be done in such a way as "to promote the progress of science and
useful arts." Legally, then, any patent system in the U.S., if adopted at all,
must be authorized and defined by Congress with a view to promoting the
progress of science and, implicitly, must employ "limited times" consistent
with what it takes to promote scientific progress.

The first issue, then, is whether patents are needed at all to promote the
progress of science. In the U.S., in spite of philosophical arguments to the
contrary by Jefferson (<http://news.ycombinator.com/item?id=1171754>), this
has never been seriously in dispute. The industrial revolution was already
well in progress in 1789, when the Constitution was adopted, and the federal
authority, though generally regarded with great wariness at the time, was seen
as vital to protect the rights of inventors and to reward them with limited
monopoly grants in order to encourage the progress of science. In the first
U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress
implemented its constitutional authority to sanction patent monopolies by
defining patentable subject matter very broadly, to include "any useful art,
manufacture, engine, machine, or device, or any improvement therein." Congress
amended the Act in 1793 and then again in 1952, so that today it reads as to
the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101):
"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title."

Thus, patents in the U.S. can be granted for any original invention that fits
within the definition of patentable subject matter and that also meets the
other conditions of the patent act (i.e., that is useful and non-obvious).
Note, though, that the 1952 definition of patentable subject matter
significantly _expanded_ the scope of such subject matter in the name of
bringing the patent laws up to date with developments in then-modern
technology, all in the name of promoting the progress of science. It did so by
defining patentable subject matter to include any "new and useful process" as
well as any "new and useful improvement" of any original invention. Over time,
"process" has come to embrace business methods and also software. And the
protection of "useful improvements" made clear that new _uses_ of existing
machines or processes could be patented notwithstanding older Supreme Court
decisions such as _Roberts v. Ryer_ , 91 U.S. 150, 157 (1875) ("it is no new
invention to use an old machine for a new purpose").

To promote the progress of science, then, Congress in 1952 allowed patents to
be granted for any inventive process and for any inventive new use for any
such process. In my view, this generally made sense for what was essentially
the continued playing out of the same sort of industrial revolution that
animated the original forms of patent protection granted in 1790. Looking at
that language at that time, one could readily make the case that patentable
processes and improvements thereon could and did promote the progress of
science. Discrete inventions tended to be sharply differentiated and tended to
involve significant development effort in time and resources. An inventor
could keep a process secret and not patent it but the grant of a limited
monopoly gave a decided inducement to disclose it to the world and, hence, to
expand the broad pool of scientific know-how available to society.

Then came the digital revolution and, with software, a new or improved process
can amount to an almost trivial variation on prior art amidst a seemingly
endless stream of improvements developed in ever-rapid succession and with
little or no capital investment beyond what developers would be motivated to
do for reasons entirely independent of gaining monopoly protection for the
fruits of their efforts. Moreover, there is little that is closed about such
innovations: a wide knowledge base is in place, known to an international
developer community that is basically scratching its collective head asking
why it should be restricted legally from using techniques and processes that
represent common knowledge in the field.

The main question, then, concerning software patents, is whether the existing
framework makes sense as one that promotes the "progress of science" insofar
as it grants patent protection to process inventions in this area. Congress
needs to seriously ask itself that question. A second question, also tied to
constitutional authority and assuming that it is legitimate to grant _some_
form of patent for such inventions, is whether a 20-year period of exclusivity
makes sense in an area where innovation occurs at blazing speeds and with not
too much capital investment tied specifically to any given discrete invention.
Is that necessary to promote the progress of science? That too is a question
that Congress needs to consider.

Thus: (1) there is nothing magical about the current definition of patentable
subject matter and Congress can adapt this to suit the needs of the time in
promoting the progress of science, (2) process patents are in themselves a
fairly recent phenomenon (at least in any large numbers) and it is no radical
change to curtail them in areas where they make little or no sense in light of
the constitutional purpose for why patents even exist in the first place, and
(3) legitimate patent reform needs to go far beyond procedural fixes around
the edges of the system and needs to focus on the realities of modern
technology and whether the patent laws further or impede the progress of
science as applied.

The policy debate can and will go all over the board on this but, if it is
framed in light of the constitutional foundation for having patents in the
first place, it can be shaped in a way that puts the focus on the fundamentals
of what needs to be fixed as opposed to lesser issues that do not get to the
heart of the problem. The main problem today is the blizzard of vague and
often useless patents in the area of software. These are effectively choking
all sorts of innovation and are benefiting mainly lawyers, trolls, and others
who do not further technological development by what they do. It is a mistake,
in my view, then, to swing too broadly in trying to fix things (as by
advocating abolition of all patents) or to be so timid about the issues that
reform is marginal at best and ineffective in dealing with the current crisis
of an over-abundance of essentially worthless patents. Congress _embraces_ the
patent system as a whole and shows no hostility to its fundamentals. Reform
must be shaped in light of those fundamentals but it must, at the same time,
be meaningful to eliminate the main garbage from the current flawed system.
Judge Posner has pointed the way generally and proponents of reform ought to
follow his lead, with the focus being (in my view) on software.

~~~
law
Thank you for the absolutely fantastic insight. I completely agree with
everything that you've written, and especially with your sentiments concerning
rash decisions in reforming patent law. Patent law is an enormously complex
system that's inextricably linked with the conflicting interests of many
stakeholders. Moreover, _getting it wrong_ (by constricting the scope of
patentable subject matter, limiting the remedies available, etc.) will cause
the very conduct that the framers sought to avoid: overuse of trade secrets to
safeguard inventions. Effectively, an exclusive right to exclude others from
practicing an invention is the price the public pays to help the public
repository of knowledge (e.g., scientific, literary, artistic) stay abreast of
the private repository.

I have a problem with any suggested systemic improvement where the available
protection depends on either the cost of the inventive process or its
duration. The industry averages sound good in theory, but the USPTO is not
equipped to investigate the truthfulness of these claims, which themselves are
extraordinarily susceptible to accounting tricks and the like. I don't believe
the solution stems from increased regulation. Instead, I've been considering
an alternative approach that I haven't heard of before: _patents should be
inalienable with their rights vesting exclusively in the inventors (jointly
and with right of survivorship) for the statutory period._ It follows that the
state would have a vested remainder in those rights and that no inventor would
be able to transfer their right to another.

This idea came after reading about the philosophical and theological concept
of inalienable possessions. Paul Kockelman's[1] first theoretical point on the
topic concerns ontological classification: ``the gain and loss of inalienable
possessions is related to the expansion and contraction of personhood.'' In
other words, an individual's accumulation of inalienable possessions
correlates with their personhood. Kockelman's second theoretical point asserts
that inalienable possessions ontologically individuate, viz. they are uniquely
identifiable with the particular individual for his life. Kockelman's final
theoretical point is intimately related to classification and individuation:
``inalienable possessions historically and biographically trace.'' It follows
that the inalienable possessions held by a group of people can act as a lens
through which an observer may view that group's history.

Kockelman's formulation serves as a brilliant metaphor in the domain of Art.
1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the
``transcendent treasures'' that we must ``guard[] against all the exigencies
that might force their loss.''[2] Overly litigious plaintiffs who amass war
chests of patents constitute one such ``exigency.'' Another ``exigency''
occurs when universities strip patent rights from uncompensated students who
took that one giant inventive leap. Universities justify their actions by
asserting that the transfer was consideration for facility usage---an
``exigency'' that arguably constricts the affected students' personhood.

Many people question how an idea is patentable subject matter: the answer is
that it's not. An invention isn't any idea: it's a process, machine,
manufacture, composition of matter, or any new and useful improvement on any
of them. During the inventive process, an inventor must maintain constant
``intellectual domination'' over his work, and but for a highly particular
ordered set of neurophysiological reactions occurring in the prefrontal cortex
(``the fugitive fermentation of an individual brain''), the idea would not
have occurred at the instant it did. If the idea contemplates a novel and
nonobvious invention, then it advances the humanities or sciences by that fact
itself. The idea is a psychofact capable of acting as a vehicle ``for bringing
past times into present'' so that the history of the inventive process elides
into the inventor's identity. It logically follows that a chronology of all
inventors in a society produces historically significant insight into the
progress of the Arts and Sciences. By contrast, a chronology of patent
assignees produces its own historically significant insight: the alarming
increase in exigencies threatening the dissemination of these ``transcendental
treasures:'' ideas. Accordingly, inventions are properly entitled to the
appellation of inalienable possessions.

Applying Kockelman's theoretical points creates what, in my view, is a
sensible reformation of intellectual property law. We can distinguish patents
from other property interests by noting that patentability requires an idea to
meet a series of standards that elevate it to the status of an invention. When
an idea meets those standards, it becomes intertwined with the inventor's
personhood---his conscious ability to frame representations about the world
and act accordingly on them. The gain and loss of inventions is clearly
related to the expansion and contraction of the inventor's personhood, because
as he invents, the plans he formulates and actions he takes on his conscious
perceptions change according to new representations based on the changed state
of technological advancement.

In the end, intellectual property is different because it's inextricably
linked with the property creator's personhood. Ideas are so profoundly human
that it becomes unconscionable to think someone can claim ownership rights in
a property interest arising out of another's invention. This solution isn't
perfect, but it's one with which I would be more okay.

[1]
[http://www.columbia.edu/~pk2113/Article%20PDFs/Inalienable%2...](http://www.columbia.edu/~pk2113/Article%20PDFs/Inalienable%20Possession%20and%20Personhood.pdf)
at 343

[2] [http://books.google.com/books?id=lNitvRLiiBUC&lpg=PA33&#...</a>

~~~
hxa7241
Non-transferable/alienable rights is a valid possible adjustment. But it is or
would be so solely on the basis of its actual economic effect. This simple
clear economic approach -- Posner's broadly -- is the only sensible way to
understand actual law and activity here.

All that stuff about 'personhood' and 'intellectual domination' and
'possession' is otiose. Any attempt to make an _a priori_ case for
intellectual monopoly seems certainly doomed to failure -- for a very simple
reason: they do not fit the basic physical facts.

Informational goods are nonrival: they are copyable and usable with no loss to
the original. The relation between copies of information is abstract. A copy
_adds_ its value, and subtracts nothing.

Two notable ethical points follow from that. Copying is consistent with the
principle of universalisation: a general rule that all should copy is not
self-contradictory -- the opposite: if we all do it, we all gain. Second,
_restriction_ of copying _fails_ a basic rights-justification or liberty
principle: we are restricted only so far as we would harm someone else, yet
for the notion of unauthorised copying any claim of loss has no grounds in any
physical fact.

Ultimately, we want to be governed by the basic physical facts and how their
constraints and ramifications allow us best advantage. 'Personhood'
justifications for intellectual monopoly seem about as reasonable a basis for
regulating behaviour as believing that taking a photo takes someone's soul.

~~~
law
> Informational goods are nonrival: they are copyable and usable with no loss
> to the original. The relation between copies of information is abstract. A
> copy _adds_ its value, and subtracts nothing.

That is where I disagree. There's an important distinction between the
inventive step leading to a discovery and subsequent copies thereof. A
subsequent copy of an idea does not possess the same characteristics as the
``flash of genius'' in the mind of the person responsible for producing that
idea. From this distinction, it follows that an idea, alone, has no intrinsic
value--intrinsic value arises out of attachment to society.

Your argument is that an idea gains value as it spreads, but I don't think
that's correct. Rather, societal advancement occurs when members of a society
generate and produce novel ideas. There are two competing forces: (1) the
spread of new ideas is akin to a positive feedback loop, since new ideas are
based on old ones (there's evidence of this: technological advancement grows
exponentially with respect to time); and (2) as an idea spreads, its
connection to its creator fades, eventually causing misappropriation of that
'inventive step' and disincentivizing the creator's continued creation of new
ideas. The belief that losing control over the spread of an idea on the basis
that no harm to the information occurs from copies thereof is flawed: it
focuses on the information, rather than the person who created it.

Permitting patent rights to vest only in the inventor transforms his talent
into a commodity, rather than the fruits of that talent. It rewards the
individual rather than those acting on the information for no purpose other
than economic gain.

------
cletus
Posner may well be one of the most important figures in tech in the coming
decade for standing up against the lunacy of software patents. What Congress
and the President don't seem to understand is the cost of patent litigation in
the US poses an _existential_ threat to America's dominant position in tech.

One of the most compelling arguments to me (against these patents) is that in
pharmaceuticals, for example, you are dealing with a handful of patents. Some
processes might be patented, maybe even some equipment (easily licensed
generally) but basically the patents that go into a process (that may itself
be patented) are minimal and can be reasonably well understood by those
running such businesses.

Posner pointed out that a smartphone may well contain (and violate)
_thousands_ of patents. That right there is a sure sign that something is
rotten in the state of the patent system.

The solution here isn't reform, as some suggest (ie raising the bar to what's
patentable). It's simply to get rid of them. First-to-market and execution are
what matters and what should matter. 20 year exclusives for vaguely worded
patents on things that are more often than not obvious is just a means for big
companies to extinguish smaller companies.

~~~
freehunter
Especially in the tech world. If you're not first on the market with
something, in many cases you might as well be last.

Problem is, this keeps out small companies trying to innovate beyond their
corporate brethren. If I come up with something completely new and awesome, it
might be two years before I can start manufacturing it and it might still be
new and innovative then. HTC might have it out in 18 months. So during the
time I'm designing and testing this equipment, I have to maintain complete
secrecy through the entire supply chain, because if one link in the chain goes
down, my billion dollar rivals have run off with the biggest idea of my five
cent company.

Raising the bar and lowering the time frame would lower the barriers to entry
moreso than removing patents altogether. Two years to get to market and then 6
months after release would be close to sufficient.

~~~
ynniv
a) You probably didn't come up with something new and awesome worth the
court's protection (sorry)

b) If you did, HTC is going to use it anyway and bury your suit in the courts
until you run out of money (sorry)

c) Either way, your example only applies to hardware or you wouldn't have a
supply chain or manufacturing

Ultimately, theft of the biggest idea of your 5¢ company doesn't warrant tens
of billions of dollars of legal overhead.

Perhaps I agree that raising the bar fixes the problem: if your invention can
be implemented by a general purpose computer, it does not deserve patent
protection. And that's "can", not "is" : if it is at all possible to implement
an invention in software, it is essentially math and does not deserve patent
protection. Patent protection is for mechanical inventions (wheat threshers)
and material transformations (metal casting). If pharma deserves protection,
it is the exception, not the rule.

~~~
rayiner
You seem to have a very "Web 2.0" viewpoint. Yes, all the consumer-facing web
startups pimped here on HN aren't really doing anything where patent
protection would be beneficial. But in the embedded realm, there are a lot of
situations where software might merit patent protection.

E.g. my wife is pregnant, and we recently got an ultrasound. The ultrasound
machine gave us a surprisingly detailed three-dimensional image of the fetus.
I'd be willing to bet that the algorithms for generating these visualizations
were not something you could whip up in a few weeks using Rails. Without
patent protection, the maker of that software has to get into the business of
building ultrasound machines. He can't just sell the patent to someone who
builds ultrasound machines. I think there is a lot of value in being able to
facilitate such specialization of labor.

~~~
ynniv
That's almost offensive - you seem to have a very _ignorant_ viewpoint. Have
you never heard of licensing? Research teams regularly build libraries that
become incorporated into products that they do not sell. They can also license
the math (which is not patentable) and have another team actually write the
code. Why does the licensee bother to pay? Exclusivity, maintenance, further
improvements, etc. Ideas that are not patentable can still be protected as
trade secret, making them commercially valuable. If a company does not pay
their licensing fees, the researchers might choose not to work with them in
the future, providing a competitive advantage to other companies that do.

Since you don't show a firm grasp on patents, let me provide an example of the
problem. Remember that patents are a legal protection ignorant of independent
discovery. Say that you created a new, successful communications tool. People
are often bothered when someone sends them a message while they are giving a
presentation, so you change their status from Available to Busy when their
calendar says they are in a meeting.

As you become a big commercial success, IBM sues you for infringement of their
patent on changing chat availability status based on calendar free/busy. They
seek damages and an injunction until the matter is resolved. They will settle
for 150% of your company's worth, or they will pay their lawyers to tie this
up in the courts until nobody cares about your product or you run out of
money.

Hopefully it is obvious that patents do not help innovation in this situation.
Some will say that this is a case of a bad patent, and the solution is just to
ensure that patents are good. The problem is that only a couple of people in
the world could tell the difference between a bad software patent and a good
one (none of them are judges or lawyers), and who are they to rule on IBM's
lawsuit against you?

It is now on your head to request re-examination and prove that someone else
had already created a product that uses a personal calendar to change away
status based solely on information in trade publications and product manuals
(if you can find them). Alternatively you could attempt to prove that the
invention was obvious, which requires you to recreate the environment in which
the patent was filed and convince a non-technical examiner that an average
programmer in that environment would have found it to be obvious.

But let's cut to the chase and say that you run out of money. IBM can litigate
their toilet paper patent for centuries without noticing, and you probably
have a couple months of runway. This is what it means to have patent
protection.

~~~
rayiner
> Have you never heard of licensing? Research teams regularly build libraries
> that become incorporated into products that they do not sell.

Licensing is based on copyright, a different government-granted monopoly. Why
should software libraries be protected when software algorithms aren't? What
you're saying is that you should be able to protect your "yet another JS
framework" under copyright, but not something like a power control loop in a
wireless device under patents.

> They can also license the math (which is not patentable) and have another
> team actually write the code.

You can license it, but you have no legal protection to keep people from
copying it.

> Ideas that are not patentable can still be protected as trade secret, making
> them commercially valuable.

1) you can't transact in trade secrets; 2) trade secrets are of no use when
embedded as software in devices.

Say I come up with a new power control loop for wireless devices. The loop
allows radios to cause less interference while maintaining bandwidth. Say I
keep it as a trade secret. If I put it in a radio and sell it, someone can
reverse-engineer the firmware and copy the design of the power control loop.
Trade secrets won't protect me. Moreover, I have to get into the business of
building every kind of radio I might want to sell. I can't just sell the power
control loop to someone who is good at building radios, because trade secret
doesn't cover things you voluntarily disclose. Imagine the situation: I go up
to Raytheon and say "I've got a great power control loop, I'll sell it to you
for $50m." And they say "well, how does it work? We're not paying $50m without
understanding what we're buying." And you say "well pay me first than I'll
tell you!"

> Hopefully it is obvious that patents do not help innovation in this
> situation.

Agreed, but that's a phenomenally bad patent.

> Some will say that this is a case of a bad patent, and the solution is just
> to ensure that patents are good.

Yup.

> The problem is that only a couple of people in the world could tell the
> difference between a bad software patent and a good one (none of them are
> judges or lawyers), and who are they to rule on IBM's lawsuit against you?

There are hundreds of IP lawyers with strong technical backgrounds who could
tell the difference between the patent in your example and say the OFDM
patent:
[http://worldwide.espacenet.com/publicationDetails/biblio?CC=...](http://worldwide.espacenet.com/publicationDetails/biblio?CC=US&NR=3488445&KC=&FT=E&locale=en_EP).

The "chat availability status" patents are getting a lot of press on HN, but I
spent years working at tech companies that produced patents along the lines of
the OFDM example linked-to above. I think a lot of people on HN don't have the
exposure to embedded software to be able to really appreciate what the other
side of the patent coin looks like.

~~~
ynniv
_Why should software libraries be protected when software algorithms aren't?_

Independent invention.

 _> They can also license the math (which is not patentable) and have another
team actually write the code._

 _You can license it, but you have no legal protection to keep people from
copying it._

To keep _other_ people from copying it. The people that you license it to will
be contractually bound. Perhaps, but it will be expensive and time consuming
for them to copy it. Patents are for a limited time, so this is an argument
tied up in a comparison of how long it takes someone to unravel a complicated
system, how long a patent lasts, and how much the inventor would license it
for.

 _I think a lot of people on HN don't have the exposure to embedded software
to be able to really appreciate what the other side of the patent coin looks
like_

That may be true. If you have made inventions such as these, you should
protect them with trade secret because chat availability status patents are
far more excessively damaging than strong signal processing patents are
valuable.

~~~
rayiner
> Independent invention.

Nobody is independently inventing the OFDM patent I linked to, at least not
within the patent term. You're taking an edge case and making the debate all
about that edge case. I think it's quite reasonable to have genuine
independent invention as a defense to patent infringement, FWIW.

> You can write a contract for anything.

You can contract for anything, but you can't enforce the contract against
anyone not in contractual privity.

> That may be true. If you have made inventions such as these, you should
> protect them with trade secret because chat availability status patents are
> far more excessively damaging than strong signal processing patents are
> valuable.

As I described above, trade secrets don't allow the crucial feature of being
easy to transact in. And you have absolutely no basis for your claim that
"chat availability" patents are more damaging than signal processing patents
are valuable. You can point to the Apple litigation on one side, and I can
point to ARM, Ltd. on the other, etc.

~~~
ynniv
_You're taking an edge case and making the debate all about that edge case._

Sadly, I see this the opposite way. Quantity-wise good, innovative
architecture patents are in the vast minority. If we are to deal with software
patents one at a time, the combined effort dealing with bad ones far outweighs
good ones.

 _You can contract for anything, but you can't enforce the contract against
anyone not in contractual privity._

Hah, I already updated my comment based on your updated comment! HN isn't the
best for these kinds of discussions.

 _Nobody is independently inventing the OFDM patent I linked to, at least not
within the patent term._

I have been thinking for some time that we need a collection of good software
patents. Not having read the OFDM or ARM patents (for which I'm not qualified
anyway), I don't know if they are "good". But I do know that one day we're
going to invalidate a large percentage of software patents or watch innovation
happen elsewhere. When that day comes, it will be important to have a list of
things that are valuable, or else we'll end up with the bar that I described
(anything computable is not patentable).

Unfortunately, I don't know of enough of them to seed such a database. Maybe
fast square root or some of Carmack's graphics work. And as such I'm okay with
seeing them 100% invalid. If you disagree, perhaps we can chat about it
(email's in my profile).

------
mtgx
" _In most [industries], 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._ "

Wow, this guy _really_ gets it. This is how markets and competition work.
There's no need to give a company a legal monopoly. If anything, that lack of
monopoly, will force companies to keep trying to invent new things to keep
staying one step ahead of the competitors.

I also love this one:

" _forbidding patent trolling by requiring the patentee to produce the
patented invention within a specified period, or lose the patent_ "

These days big tech corporations are filing patents as fast as they can print
them on paper. And then 95% of them will probably never be used in products
that are shipping in the market.

~~~
dguaraglia
_"forbidding patent trolling by requiring the patentee to produce the patented
invention within a specified period, or lose the patent"_

That bit is, I think, is _the key_ to unravel whole patents issue.

The other day I was wondering why it was that, somehow, I considered some
patents valid and others invalid. For example, I consider many codecs (DivX,
JPEG) to be valid patents, but consider patents on certain algorithms to be
invalid. Weird, huh? Because codecs are just a specialized algorithm. I just
couldn't put my finger to it.

And then it hit me: all the patents I considered valid were _actual products_.
DivX and JPEG were patented, implemented and licensed. The codecs themselves
provided a leap in technology, and without that particular codec the product
wouldn't exist at all. The patents I considered invalid are either bells and
whistles or lack a real implementation. In other words, the creators of DivX
and JPEG were making real money by developing and marketing a new technology,
whereas Apple (just using the example du jour, please spare me the faboyisms)
is trying to shut down competing products by just pointing at a tiny feature
and screaming "COPYCAT! COPYCAT!".

The day Apple shows that it's the rounded corners in the iPad that is making
them money, and not the fact that they developed a really thin tablet with
great battery life and a decent OS, I might reconsider.

~~~
ZeroGravitas
Aren't those two very weird examples? Jpeg is mostly free to use and no one
uses the bit that isn't. Divx is just a proprietary twist on mpeg standards
that got famous on the back of piracy. And the standard itself was considered
a bit crappy in both technical and licence terms and might not have succeeded
at all if not pushed by an industry cartel.

------
jpadkins
I used to be like Richard Posner, where I was generally against patents except
for a few cases like pharmaceutical. Until I read Against Intellectual
Monopoly.
[http://levine.sscnet.ucla.edu/general/intellectual/againstne...](http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm)

See chapter 9 for an historical analysis of the pharmaceutical industry in
countries without patents. The surprising result is companies no-patent
protection countries were producing equivalent new drugs as the patent
protected companies.

Now I am full anti-IP advocate, except for certain trademarks and attribution
of authorship (so people know who the company/author this product came from).

~~~
javajosh
Makes sense. But perhaps Posner is applying some logic, privately. Pharma is
well-funded and powerful, and going against all IP would definitely set them
off. So, giving them an industry exemption makes patent reform for the rest of
us far more likely. That's an outcome, I believe, that is worth giving pharma
their exemption.

------
kiba
Whenever a congressman or members of an executive branch do something, I
usually hate their gut.

Whenever a judge decide something, it usually make me like them.

In fact, Americans trust their judges more than their politicans and
bureaucrat. [http://www.gallup.com/poll/143225/trust-legislative-
branch-f...](http://www.gallup.com/poll/143225/trust-legislative-branch-falls-
record-low.aspx)

~~~
crusso
That's because the judicial branch was design to be a-political.

While I enjoy reading Posner's opinions, I think he should run for office if
he wants to be in the political spotlight. I don't want judges creating and
pushing new political theories. I want them to spend their time and energy
understanding the laws created by legislators and interpreting those laws as
best they can through the filter of the Constitution.

------
clarle
Great points all around, but I don't necessarily agree 100% with his thoughts
in the pharmaceutical industry.

For specific drugs, this may be the case, but when you have pharmaceutical
companies doing things like patenting specific gene sequences, causing both
other companies and academics to have to get licenses/permission just to
perform research on something completely different, that's just ridiculous.

How patents work should be more flexible, and not limited to just whatever
industry they're in.

------
WalterBright
Before 1989 or so, software was assumed to be not patentable. This did not
appear to slow down innovation or progress in software in the slightest.

~~~
jandrewrogers
It depends on what you mean by "software". For example, the well-known RSA
algorithm patent was filed in 1977.

What most people are calling "software patents" are actually business method
patents, which do not necessarily involve software at all (though many of the
infamous ones do). Business method patents are relatively new and largely
unique to the US.

~~~
adestefan
As an example, the Amazon One-Click patent is a business method and has
nothing to do with software.

------
guygurari
"There are a variety of measures that could be taken to alleviate the problems
I've described. They include: reducing the patent term for inventors in
industries that do not have the peculiar characteristics of pharmaceuticals
that I described; ..."

To me the obvious solution, and the one missing from this list, is to abolish
patents altogether in such industries ( including the tech industry). I wonder
if judge Posner would agree, and if so, why not come out and say it? Would
this be considered too radical at this point in time?

------
BenoitEssiambre
In my opinion, the key characteristic of software that makes the current
patent system not suitable is the vast amount of interdependence inherent in
this type of technology. Code is not used side by side like an infantry of
little computer processes working in parallel to make computers or phones go.
It is rather organised and packaged in a huge network of building blocks, a
pyramid of hundreds of thousands of libraries, APIs or functions heavily
inter-dependent on each other. What’s more, the building blocks are usually
not all written by the same people or organisations and a consistent interface
is critical for enabling compatibility (often between millions of parts made
by thousands of developers).

This hierarchical and networked architecture is inevitable and it is the best
way to organize such complex information, however the stability it requires at
the bottom of the pyramid of code means that some building blocks cannot be
changed once the pyramid is built. Someone claiming ownership of the shape of
a bottom-center block after the pyramid is built, someone having the power to
force a bottom block to be removed and replaced with a different shaped one,
no matter how simple and obvious this bloc is, does not have power over just
this block but over the whole structure above it and all the components that
depend on it. This means patent holders have a disproportionately large amount
of power when they target such a bloc. From a possibly trivial piece at the
bottom, they can control a vastly more sophisticated structure built on top
which they had no part in conceiving. They know that changing it would require
tearing down, redesigning and replacing often tons of dependent work and
probably break compatibility for huge amounts of users of these projects.

------
vibrunazo
I'm extremely skeptic of the proposed solutions. I haven't yet seen a solution
that would be a clear net win for society after summing the pros vs cons. It
seems to me that fixing patents is a mathematical impossibility. Trying to
come up with a system that forces most inventors to pay a few inventors, while
at the same time not punishing most inventors. Sounds like trying to come up
with a number that is less than 2, while at the same time greater than 1000.
It's mathematically impossible.﻿

The optimistic in me would love to believe there's a brilliant solution, which
is way over my head. The realistic in me, can only see paradoxes and no
obvious solution. Maybe I'm just too dumb to solve this problem myself.

I believe the right path is to look back at what the vision behind patents are
in the first place (incentives for invention), and think from the ground up
how we can implement this without the modern "necessary" dogmas (such as
licensing or IP). Then I can actually think of plenty of solutions. But none
of them even remotely resembles what we know today as a patent.

------
Zenst
What I don't understand and also feel is a issue with patents as a whole is
you can patent something without actualy being able to show a working
example/product.

For example :- somebody could patent teleportation - define it and then when
somebody does all the hard work and actualy invents a teleporter, you are then
able to cry patent violation and cash in. That too me is compeletely wrong,
yet that is how the patent system stands currently.

I have also noted that alot of patents that have no working prototype or
product, all seem to have been done in some SCI-FI movie/TV series priviously
and find it somehow suprising that the movie industry have not started jumping
on this patent bandwagon as they have more of a working prototype than many
awarded patents that get approved in this day and age.

~~~
PaulHoule
They aren't supposed to grant a patent if there isn't a reduction to practice.
In practice, the PTO is overworked and things get through that shouldn't.

If it comes down to a lawsuit and there was no reduction ot practice, a patent
can be thrown out. Of course, when it gets to court it's very expensive for
everybody.

The best way to demonstrate the practicality of a software invention, for
instance, is to attach working source code to the patent -- with the funny
consequence that a strong software patent involves, in some sense, a
contribution to open source.

~~~
brazzy
That's not funny or ironic, that's one of the two things patents are intended
to achieve: to encourage inventions to be published for everyone to use freely
(after the patent protection expires) rather than kept secret.

~~~
PaulHoule
it makes sense from the perspective of the patent system and it's goals, but
it's contradictory to the "patents bad" attitude that is common in the open
source community.

------
keithpeter
"...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..."

UK perspective: what do people here think of this suggestion, perhaps even as
a temporary 'damper' on the patent troll business model? Raising the barrier
to litigation would perhaps slow down the rate at which these cases occur. In
the UK, we have a special court for trying IP cases, and the barrier to
litigation is very high, perhaps too high for some small companies. Of course,
the EU does not allow the granting of software patents.

~~~
jandrewrogers
The EU does not allow business method patents, which is what most people
actually mean when they say "software patents". It does allow computer
algorithm patents.

~~~
rwmj
Actually the EU clearly disallows software patents in very plain language:
[http://www.epo.org/law-practice/legal-
texts/html/epc/2010/e/...](http://www.epo.org/law-practice/legal-
texts/html/epc/2010/e/ar52.html)

~~~
jandrewrogers
Define "software patents".

That "very plain language" only excludes business method patents i.e. "...on a
computer" or "...on the internet" patents. These are not computer algorithm
patents (for example, a new sorting or encryption algorithm). The term
"software patent" does not denote a distinct class of patent.

Computer algorithms are patentable in the EU. I can think of many, many
examples of computer algorithms that are patented in the EU (e.g. crypto
patents, compression algorithms, codecs, etc.).

~~~
rwmj
Patents have certainly been granted, but the language I link to above is very
clear about the validity of such patents:

"The following in particular shall _not_ be regarded as inventions [...]:
schemes, rules and methods for performing mental acts, playing games or doing
business, _and programs for computers_."

[my emphasis]

------
RockofStrength
The good thing about patents is that they motivate the discovery of alternate
approaches. The bad thing is that they stagnate inter-connective progress.

Patents have become a hideously bureaucratic market unto themselves, creating
a kink in the hose leading to the fountain of progress, but the fountain
attained its magisterial beauty partially as a result of the motivation to
circumvent roadblocks.

------
rogerchucker
Isn't the fundamental problem in software patents that patent holders have the
option of NOT licensing their patents to infringing parties? Outright ban
based on patent infringement is criminal in my view. Collecting rent based on
infringement is completely fair, on the other hand.

