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Judge Posner: U.S. patent system out of sync (chicagotribune.com)
339 points by sutro on July 5, 2012 | hide | past | web | favorite | 120 comments

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).

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.

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

Bringing drugs in the discussion has more of a relative role than any absolute metric though. We could subsume the reasoning as such though:

    - patents work better on drugs than on software by leaps and bounds
    - patents are far from a perfect fit for drugs
    - it follows that software patents are an atrocity of abysmal scale

Sure you can patent hookworm therapy! You can't get a composition of matter patent, but you can get a use patent. There is a company right now running clinical trials on a similar therapy.


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

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.

According to http://www.fastcompany.com/magazine/141/the-price-of-approva... the average cost of phase I-III trials is in the neighborhood of $150 million.

So no, not really in the range of crowdfunding.

And if you did get it approved, and managed to sell the treatment to everyone in the USA who has Crohn's disease, you'd need to make a profit of several hundred dollars/person just to pay for the cost of FDA approval. Realistically you'd want to charge more to recover up front risks, the cost of marketing, and uncertainty about what fraction of the target population you'd successfully sell to.

I don't disagree with these points, but my personal take is that the primary difference between software patents and other patents is that most things that end up getting patented in software are things that pretty much any programmer may implement in the course of trying to solve some problem. The patented algorithms often aren't novel or unique, but someone just stood up first and said "Look here what I did. I want a right to exclusivity on this." Even though someone trying to get to the same end goal at some point in the future probably would have easily developed the same method.

In drugs, the end result gets patented. Some chemical formula that's just right, which (in most cases) was not simply stumbled upon in the pursuit of something else. And even if it was stumbled upon, it's still novel and was not likely to be created as a product or byproduct by another party very easily. The insight required to develop the drug was most likely unique.

The equivalent to most software patents today in the drug field would be patenting methods of, say, mixing chemicals. Imagine if there was a patent on mixing two solutions by pouring one from a beaker into the other in a flask, twirling around twice and then shaking gently four times. What if someone had a license to that mixing method and everyone else had to pay to do it? It'd be ridiculous. It seems like that's basically what software patents are.

The equivalent to drug patents in the software world would be, I guess, patenting an entire OS, or an app, or some fully integrated, significant piece of software. For example, no one should be able to make a counterfeit copy of iOS as a whole and sell it as their own. That I would support legally. I (think?) this is already covered by copyright law.

I'm betting that in many worlds your "pretty much any programmer may implement" goes for nearly all MechE patents too, civil maybe as well, and plenty of EE patents I'm sure.

In reality, nearly all patents are just ::at best:: a year or two of an engineering team crunching on a problem using existing methods - usually far less. It's difficult to say which are which though - so maybe patents are really what we want at all for nearly all things?

Yeah, but I don't mind monopoly protection for something somebody worked a year on. Software patents are granted for many times the effective lifetime of a technology, for something you or I could do in a week based on ideas we've all had because they're natural solutions to their problems.

Like patenting the use of a hinge for a door instead of patenting how to make a hinge, and the patent being granted for the entire time humanity uses doors at all.

Exactly, you can't patent 'the cure for cancer' without describing the cure, but somehow you can patent 'swipe to unlock'. If it didn't take serious research and give the reader a decent insight that they wouldn't have had just by reading the title of the patent then it shouldn't be patentable.

The equivalent of describing the molecule for a drug patent is providing the source code, which is already covered under copyright protection. Sounds like a good case to make software patents redundant

I think we really need to consider what patents are for - because "somebody worked a year on" is waaaay to broad. This is about helping society right? Working a year isn't a big investment for a company - so if it's such a great invention they'd easily be able to recoupe their costs.

This goes the other way too - Edison's Lab developed the first phonograph supposedly in months - yet that's far more on the "deserving" side of patents.

Time isn't the best measure, but we have to consider what an actual good one would be. Giving at patents with relatively little oversight leads to a ton of prevented inventions, but how could we possibly inspect patents to a degree that we'd be able to. I haven't seen a plausible explanation that this search problem is even tractable.

note that both "car" and "computer" were patented at the concept level (both causing huge messes, incidentally). of course, those patents expired long before the relevance of the concepts....

one of the things someone pointed out to me most of a decade ago is that more and more things are becoming algorithmic--or perhaps we should say, being revealed as being algorithmic.

take some classic physical patent like the Bessemer process for steel--given a suitably general collection of industrial robots and reconfigurable equipment, "make steel like this" is "implementable" in software.

or any random machinery patent--"be this specific kind of rotary engine" is software if your hardware is a few trillion nanites.

what exactly the implications are for the patent system, i'm still not sure....

"Look here what I did."

Sounds like a flawless abstract of most engineering papers in academia.

LOL. True.

> 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).

Actually, there is an entire class of drugs known in medicine as "patent extenders". Take your expiring patented drug, alter the formulation, or attach an unnecessary chemical group that doesn't affect the mechanism of action, et voila! Twenty more years of monopoly.

As a result of this, there are drugs which were prescribed twenty years ago that are no longer available-- since the original developer has moved on to an "improved" version which may be less effective, while the generic version is not profitable enough to be widely available.

What this means for intellectual property, I'm not sure. It's a tricky issue.

How do the patent extenders work? I mean, what's to stop the generic from just continuing to make the original formula, if the alterations don't actually do anything?

Nothing. But why prescribe the generic Lowpainex when the new Nopainatall is proven to be 0.5% more effective? Plus the Nopainatall guy gave you some pens and pads and toothbrushes, and there are ads on every night telling people to talk to their doctor about the newest breakthrough that leaves old drugs behind.

Your patients don't want the old drug, do they? They don't want some pain, they want none.

Of course, Nopainatall is just Lowpainex combined with Tylenol... but that's inconvenient to take separately.

They don't just hand out pens and pads. They pay for vacations thinly disguised as business trips, they pay for equipment, whatever it takes. One company selling generics paid doctors 5% of the cost of each prescription, they just send them a check. The latter was just ruled legal by the highest regular German court, basically saying that it's corruption, but there's no law in the books that forbids this particular kind of corruption.

I can't imagine these things are hugely different in the land of the free.

similar. my mom is a physical therapist and her building also has some doctors. a few years ago her employer/state laws banned accepting gifts (like lunch, pens, and pads of paper, &c.) from drug reps, but I still have a massive box of clicky pens with weird drug names on them from before the ban a few years ago.

My mom has a strict no-gifts-from-reps policy-- she won't even take a card, as far as I know. There's been one exception to this: At one point, a rep found out it was her birthday, and delivered a huge cake. To the unit.

Of course, she wanted to refuse it-- but after they walked it all the way down the wing, how could she tell her staff that they weren't actually getting any cake?

They are scumbags, for sure.

Don't most insurers these days require you to take the generic if one is available? So it shouldn't really matter whether the doctor prescribes the brand name or the generic. Or does that generic-if-possible rule not work here because the brand name one is ever so slightly different?

Yes, the new drug is different, so there is no generic for it.

Another class of "patent extender" is to take two existing good drugs, package them together, and then trial and sell it as a new drug. The combined product is not the same as the two off-patent generic parent drugs.

I'd love to see an example of this. I'm not saying I don't believe you but I'd really like to see an example and then look to see what Kaiser (a medical insurer and provider here in CA for the non-CA and a few other state folks) does since I don't think they would go for that.

Caduet (new) = Lipitor (off-patent in 2011) + Norvasc (patent protection ended 2007 after a suit). Zocor (2006) + Zetia = Vytorin.

There are hundreds of examples -- this is a totally standard patent expiration strategy in medicine. This whole area is called "ever-greening".

The weirdest one is getting an existing drug approved for a new use. This can be used to extend patent protection.

Here's another example (I think): http://en.wikipedia.org/wiki/Desloratadine an antihistamine used to treat allergies.

In Germany, 100 pills desloratadine are about 50 EUR. 100 pills loratadine are 10 EUR.

Thats exactly the point, if the drug is covered under patent there is no generic. So if the doctor prescribes the newer yet not better drug, there will be no generic alternative.

> ads on every night telling people to talk to their doctor

One wonders how many doctor-hours per year are spent by the consumers/patients initiating such conversations.

Nexium is a patent extension of Prilosec. In order to patent Nexium, they had to alter the chemical structure and run clinical trials to show that Nexium was an improvement over Prilosec. Some critics argued that the trials inflated the differences. IIRC, when some generic drug makers tried to sell generic versions of Nexium, AstraZeneca sued them and won.

Malcolm Gladwell, covered this and other issues affecting pharmaceutical pricing in a 2004 article. It's an even-handed article, worth reading the entire piece -


The way it generally works is that Big Pharma releases a new "2.0" version (often a cis-isomer or the same molecule with a non-functional dangly bit on it), then hands out a bunch of money to get a portion of doctors to quit prescribing the old one, and floods the market with advertising about how amazing the new one is, without letting anyone in on the fact that it's actually functionally identical (or, as Cushman points out, sometimes marginally less effective).

partly it's payment details: a lot of patent extenders roll out right when the generic goes to over-the-counter status--insurance pays for the new prescription drug, but won't cover the old one at all anymore.

the one relevant to me on a daily basis is zyrtec/xyzal -- xyzal is just zyrtec filtered for the correct chiral form, but the prescription is cheaper than the OTC for me thanks to my insurances' rules.

Marketing, I think.

Sometimes they'll severely limit the supplies of the predecessor before it becomes generic, to "encourage" people to switch over to the new drug.

There should be an easy fix for this one though: only give patents if the drug either does something totally new (e.g. cure cancer) or is fundamentally different than any previous version, while being more efficient (no point in a drug that's 99% different but has the same effectiveness).

You have to be careful with this! If you look at the statins, there are more than 5 distinctly different drugs that are work through the same mechanism. Me-too drugs right?

Well, some patients can't take Crestor because of a rare side-effect, so they switch to Lipitor and are happy. You have to remember that patients have individual needs and sometimes what looks like two identical drugs actually provide a benefit to the patient.

Sure, they only way to truly solve these things is stop making it a mechanical process and turn it into an interactive process with people involved who have common sense. Patents should be "deny by default" with the party arguing why they should get one. If they can convince the e.g. "board of experts" then they get it. Then we just have to execute the first "board of experts" member who takes a bribe. :)

Drugs are typically presented as the crown jewel for patents, but an examination of the modern drug industry destroys that notion for me. Some decent arguments can be found here: http://www.dklevine.com/papers/imbookfinal09.pdf

Indeed. But one could have known as much by analyzing the moral case against patents: patents are unjust restraint of one human being from acting to think, create, and sell. There is no possible argument to say that you can bind another human down "because I thought of it first", really patents reflect the moral mentality of a two-year-old.

With something like drug patents, there's a lot more going in than 'I thought of it first'. Remember, you're supposed to have a working implementation to patent something, too.

> two-year-old.

Name calling is not a pleasant or productive way to debate a complex issue.

There's nothing particularly complicated here. We are dealing more with mythology and barbaric thought processes than with an actually complicated problem.

There you go again. The actual problem is this:


It's not easy, and trying to create property artificially is hardly 'barbaric', even though it has its drawbacks (unfortunately, so do all the other solutions).

It is barbaric to think that if you think of something and create something based on it, then you can attack someone (whether directly or via the government is beside the point) and take their property if they think of and create it too. It's simply barbaric. There's no possible rational/moral justification here.

Now, you may not see the barbarism clearly or at all. But that merely explains why you don't why calling it barbarism.

There is some rational justification explained in detail in the link I posted: creating artificial property is one way of confronting the underprovisioning of public goods. It's imperfect, but so are all the other ways, and so is simply letting them be underprovisioned.

Calling people barbaric for disagreeing with you is not really ok in this community.

Exactly, patents and intellectual "property" always refer to arguments relating to physical property; when by their nature the explicitly limit the rights you have to use physical property that you own. It's outrageous.

At least conception ally, patents aren't a restraint on creating, they're a restraint on copying.

Not if they are used to prevent someone from creating a new version of something that implements some pattern which looks like a previously patented thing.

Turns out this classifies most innovation ever.

If by conception you mean looking at "you get a monopoly to make X related product" without looking past to "meaning someone else can't make Y related product"

No, they are a restraint on original creation. If your original creation is conceptually similar to something else filed with a bureaucrat, you lose your original work. If you are a small company, and someone claims that it's similar, then you probably loose your work regardless of whether it's similar.

Patents are neo-feudalism.

How do you propose someone could demonstrate that they independently arrived at the same idea, rather than simply observing the existing idea.

If you think "I thought of it and no on else did" is not worthy of being protected property then that is fine and you can make that argument and I wouldn't necessarily argue against you, but I don't think it is accurate to solely argue against patents by characterizing them solely as protection against random other people independently coming to the same idea without the original inventor affecting them at all.

John Siracusa recently covered patents on his Hypercritical podcast: http://5by5.tv/hypercritical/68. Nice dissection of the idea of drug patents as being "special" (vs other kinds of patentable IP) in there as well.

The society needs to find a new way to give incentives for drug development. Patents may seem to solve the problem from the drug company's point of view, but it keeps the price of drugs prohibitively high for the less fortunate of us.

So there are billions of people in the world who are left without medication or use wrong medication because of intellectual property licensing and pricing issues. This leads to unnecessary suffering and other bad things like antibiotics overuse (particularly in India) and drug-resistant strains of deceases.

On the other hand, with drugs you have the problem that for the 20 years that the patent owner has a monopoly, the price to consumers is high compared to after the patent expires and the generic version becomes readily available.

People can die during this time because they can't afford the drug.

A possible solution:

1. Add to drug patents a compulsory license, allowing anyone to make the drug provided they pay a royalty determined by statute to the patent owner.

2. This royalty rate would be low enough that the generic drugs are cheap--maybe 5 to 10% more than they would be if there was no patent.

3. This would make it harder for the patent owner to recover their costs over the life of the patent. We want them to recover their costs (and make enough to finance developing more drugs) so need to do something to counter this. We can do this by making the patent term longer for drug patents. Instead of 20 years, make it something like 50 years or 75 years or even 100 years.

We all win with this. The drug companies (as long as they are in it for the long haul) make money when they put in the effort to develop new drugs, but the patients get the drugs at an affordable price right away instead of waiting 20 years.

I can't see this working at all.

R&D is an incredibly risky proposition. The drug company I worked for had a success rate of 0.69%. That is, less than one drug that ever entered formal testing in animals, ever made it to market. Note, all the work done up to the point of testing it in animals is a tiny fraction of the overall cost of getting a drug approved.

So combine those two issues. You have an investment that requires huge amounts of capital, typically in the several hundred million dollar range (to get a drug approved). You also have a very low chance of a positive result. What does this mean when you are trying to raise capital? A very large pay out.

If you reduced the return on this investment by 80%+ (which is what you'd do if you added a 5 to 10% royalty to the current generic prices), you'd have all that capital moving to investments with much better risk/return profiles.

I don't have the source available, but I remember reading that of the drug that are approved, only 1/3 of them actually ever make a profit for the company overall. It's the massive blockbusters like Lipitor that not only pay for all the R&D that failed, but also all those drugs that didn't fail, but didn't even break even.

It actually sounds like you are saying that drugs are NOT that expensive to develop. The high failure stage is cheap ("tiny fraction of the cost"), bringing it to market is expensive but this happens once efficacy and safety are more certain?

This would be quite a common misunderstanding, and imply that we should focus on reducing these latter-stage costs rather than treating drugs as a special case that really need patents. Can you elaborate?

I should clarify. The costs of getting a drug into animal testing are relatively low (in the millions of dollars), however, the failure rate beyond that stage is still very high (~90% failure rate) as are the costs.

You are correct in saying that efforts to reduce the costs of failure are paramount to R&D companies. In fact it is a huge focus right now. However, the requirements for approval are growing in size, so it's somewhat of a one-step forward, two-steps back deal.

Thanks for the clarification (and no thanks for the utterly bizarre downvote, whoever that was - wtf?).

Based on your experience, is it the companies themselves who can get these later costs down, or is it entirely dependent on outside parties (regulators - only reduceable by lobbying)?

In the context of the patent debate, it would make more sense for government to grant monopolies/patents where its own policies introduce the costs. Even if these costs do not decrease, because of e.g. public safety, this may actually be quite a nice criterion for things that should get protection.

Right now what is happening is that companies are shifting their R&D efforts towards diseases that have relatively low regulatory barriers. The best example is the shift out of diseases like diabetes (treatments are relatively effective, so safety standards are very high) into diseases like cancer (where treatment options are poor and safety standards are relatively low because patients die so quickly).

In the future I think it will be a combination of new technologies that allow drug makers to prove efficacy and safety in a more cost effective way. I also think regulators will soften their hard-line stance on safety (in some areas). The FDA has already started to do this. Instead of saying "that drug isn't proven safe" they are saying "that drug has been proven safe, but it helps a lot so maybe we'll allow the drug company to sell it to a few patients until we get more data".

The current drug patent system isn't the best way to incentivise R&D investment, but all the other options out there seem worse right now. You are correct, however, in saying that the costs associated with drug approval are often external to the company (the FDA). So when you pay $300/month for a new drug, a lot of what you're paying for is an assurance of efficacy and safety (and the gov't agency that assures it's done right).

What about creating a system of income-based drug pricing? If done correctly, this wouldn't even hurt profits... it would maximize them. And, everyone gets treated. Win/win.

Note that pharma companies already try to do this (because price discrimination does maximize profits), but they break pricing down by country. Countries with low per-capita income are charged less. But this neglects low-income people living in high per-capita income countries like the US; just because you live in the US does not mean you can afford the highest price. A pricing system based on individual incomes would solve this.

Furthermore, individualized pricing would help to limit the offshoring of jobs. Consider that an auto worker in the US has to pay the full US price for medication, but an auto worker in China only has to pay the price in China, which is undoubtedly lower. Therefore, the current system of nation-based pricing distorts economic incentives and unnecessarily encourages the offshoring of jobs. But a system of individual income-based pricing would correct this, and make US auto workers more competitive with their foreign competition.

Another thought would be to give the government the option to purchase drug patents from industry at some fixed multiplier of research costs and profits during the lifespan of the patent. That way if the public thought that it was truly in the public good for a drug to be available, people could campaign on the promise of purchasing certain patents.

Strictly speaking, we have that option - the multiplier of profits, &c., is just a matter of what the market will bear, however.

I'm talking about more formalized than that. For example, suppose that we had a model that would typically return double what a drug would (modelling for inflation and opportunity cost), but that the pharmaceutical company was obligated to sell the patent at that price. Furthermore, suppose that this model was tweaked to generally return 20% more to the pharma company than holding the drug for the length of the patent.

Now the voting public could say that a drug was important enough that it should be funded via tax dollars.

You missed "clear property boundaries" as a difference. It's very easy to tell if a chemical compound is being used by two different firms, it's the equivalent of the source code being identical. But for software patents, there's much more subjectivity involved, e.g. does your patent cover this type of swiping, even if it doesn't in reality could you possibly convince a jury of ordinary people of that fact?.

This ambiguity is bad in itself. You might not like the chemical patent, but at least you'll know for certain whether you infringe it or not, which saves a lot of court battles.

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."

Here's a list of what compels people to complain of judicial activism:

1. They disagree with a court decision.

I don't think it makes a measurable difference whether he draws a huge target on his back or not.

I would hope as a professional judge he would have a strong interest in law. Naturally he'll have opinions about it, whether he talks to the press after the case is over or not. So long as the written court opinion cites the law as it is now, I actually like having personal opinion added later.

Professionally, judges have to think about what harms people and what serves their interests. There's no way a human judge could avoid having this spill over into thinking how laws harm people and serve their interests.

Yeah, I was thinking the same thing.

It's convenient that I agree with his opinion, but I'm a little uncomfortable with the way he's going about things.

Keep in mind that patentability of software is not something that was ever explicitly laid down in law by Congress. Rather, it came from a combination of the Patent Office deciding to issue them and courts issuing opinions on whether existing law allowed it. Absent changes to the law from Congress, the Patent Office and the courts can just as easily change their minds about how to interpret the law.

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.

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.

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

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.

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.

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.

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".

>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.

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.

My understanding is that it can be dangerous for a company significantly affected by IP for its employees to read any patents. If that doesn't fly in the face ...

This is true. If you violate a patent while knowing about the patent you are violating you can be on the hook for triple (treble in lawyer-speak) damages compared to a violation where you didn't know of the patent previously.

For this reason, a lot of companies I've worked for have had a blanket policy requesting that software developers never read patents, especially in areas the company is working in.

Of course the fact that you can very easily violate many patents without having ever read them is just more evidence that the patent system isn't currently serving a useful purpose for anyone but patent trolls and lawyers.

I once read large parts of http://www.google.com/patents/US4614319 out of curiosity. The way it's written to actually explain the ideas shows up how most patents aren't.

If you go back the right number of centuries, the original intent was for a revenue source for the Crown.


The original intent of patents, long forgotten, was to limit the use of trade secrets. Trade secrets have the unfortunate property that the public state-of-the-art can be decades behind the private R&D. This was endemic during the times of guilds.

The reversion to a use of trade secrets, at least in software (because patents are largely unenforceable), is recreating some of the issues that patents were intended to avoid. In my own area of computer science, the private state-of-the-art is at least half a decade ahead of academia. This was the situation that patents were intended to avoid.

If academia is only 5 years behind then it doesn't seem a good deal for the public to give 20 years monopoly on ideas, particularly so if those ideas build on top of each other and lead to patent gridlock. (Of course in reality, academia is part of this patent gridlock, but the general point remains)

The point is more that academic research is reinventing the wheel rather than doing genuinely productive research. Instead of researchers researching stuff that needs to be researched, a significant number of them are researching things that other researchers have known the answer to for years. It is not an effective use of human capital.

The US Constitution authorizes congress "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"

In the jurisdiction relevant to this article (i.e. United States) the original intent was to promote progress.

We don't need patents in any industries at all if you judge them based upon their original intent -- to further the public knowledge

Good to see this one mentioned. Most people seem to forget that the original intent for all "IP-laws" originally was to broaden the public knowledge and to ultimately benefit the public.

That private entities was incentivized with limited monopolies which they could use to profit was merely a means, not the goal. These days everyone takes for granted that the means is the goal and the original goal is long forgotten.

If the original intent hadn't been forgotten as well as it has at this point, I doubt we would have seen the massive expanse of "IP-laws" which we have seen these last decades. Heck, back in the days there was no such thing as "IP". People were rational enough to realize there is no such thing as "intellectual property" which you can possess in a meaningful way.

Copyright law, patent-law and all these "IP-laws" should be reverted back to their original intent. Unfortunately that is not going to happen.

The US has way too much invested in so called "intellectual property" to go back on this now. Look at the US these days. What brings in the money? Traditional industry? All gone. Manufacturing? All outsourced.

In fact all the US has left of value is "intellectual property". Think Microsoft, Apple, Google and Hollywood. Now imagine the current US without the likes of those, or a world where their "property" could be had by anyone at no cost. Where would the US be then?

For all the bad things IP laws brings about (and don't get me wrong, I do think they are bad) there is a reason the US (and mostly the US) is pushing so hard on copyright-law and patent-law and trying to divert us from their original intent by instilling the idea of "intellectual property" as a legitimate one in the public mind.

Right now, this so called "intellectual property" is the only thing the US have left.

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.

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.

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...

Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...

Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...

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.


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:


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.

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.

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.

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?

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

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

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.

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

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.

Federal judges have lifetime appointments.


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.

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.

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.

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).

That's fair enough. I don't know a whole lot about these things but I guess my intentions as to what I was trying to say were pretty clear. Thanks for clarifying that for me though.

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

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.)

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

I wrote this about software patents:


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

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

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.

Posner is awesome.

Amen to this man!

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

Good luck with that, USA.

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.

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.

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.

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.

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