Judge Posner: U.S. patent system out of sync

Posner's right. It seems that there needs to be some new notion of what constitutes patentability.<p>Drugs are an interesting case as they have these factors going for it:<p>1) Expensive to bring IP to market. Lots of testing and clinical trials for drugs. For SW it is pretty cheap now.<p>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.<p>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.<p>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.<p>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).

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 <i>ought</i> 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?<p>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."

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).<p>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.

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.<p>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:<p>Epstein on Property Rights and Drug Patents <a href="http://www.econtalk.org/archives/2007/02/richard_epstein.html" rel="nofollow">http://www.econtalk.org/archives/2007/02/richard_epstein.htm...</a><p>Boldrin on Intellectual Property <a href="http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html" rel="nofollow">http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...</a><p>Blakley on Fashion and Intellectual Property <a href="http://www.econtalk.org/archives/2010/06/blakely_on_fash.html" rel="nofollow">http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...</a>

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.<p>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.<p>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.<p><a href="http://www.uspto.gov/inventors/patents.jsp#heading-6" rel="nofollow">http://www.uspto.gov/inventors/patents.jsp#heading-6</a>

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 <i>patents are not being issued quickly enough:</i><p><a href="http://www.sfgate.com/business/bottomline/article/Effort-to-speed-patents-new-Silicon-Valley-office-3679837.php" rel="nofollow">http://www.sfgate.com/business/bottomline/article/Effort-to-...</a><p>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.

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).<p>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:<p>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.<p>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.<p>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.<p>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.<p>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.

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

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.<p>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.<p>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).<p>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.<p>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.

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

I wrote this about software patents:<p><a href="http://news.ycombinator.com/item?id=2948724" rel="nofollow">http://news.ycombinator.com/item?id=2948724</a>

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.<p>Good luck with that, USA.

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.