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.
It is a mistake, in my view, then, to swing too broadly in trying to fix things
I feel that a natural line to draw is computability, which rayiner has argued against in another comment. He cites an old communications patent[1] as well as the ARM architecture patents as examples with protecting. I am not familiar with either, but I feel there needs to be a strong metric for patentability. To that end, I propose that we create a collection of patents that those of us whose innovations in software are supposed to be encouraged, feel are worth protecting.
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.
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.
Posner's article reminds me of a nice polemic in season 2 of _House M.D._ about the abuse of pharmaceutical patents (by way of counter-example). They take a drug they know works, tack on a vitamin molecule, patent it, and stop manufacturing / marketing its predecessor. Speaking as someone who has worked in Pharmaceutical marketing (I developed mobile sales tools), this seems pretty accurate.
Meanwhile, if you look at how difficult it was for the concept of usability to break into the mainstream (it essentially required Microsoft's persistent application of market power to popularize ideas borrowed from Apple/Xerox/et al. and Xerox tossed a lot of money and time at PARC just for starters).
If patent law were an easy problem to solve, it would have been solved.
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.
to clarify/add to your point - when we speak about pharmaceuticals, usually we are speaking about one patented molecule, one...
Before any pharma company can either start producing or outlicense, it shall go through Phase 1, 2 and 3 clinical trials. The cost of those is estimated [if we speak about serious stuff] close to 2-3 billion usd.
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.
This sentence has made me think that there seems to be an amazing parallel between the patent industry and medicine. In the past, patents were quite simple and few, and one could see how things should go in patent disputes. Patents did not get complicated at a granular level because the level of knowledge necessary to identify how complex things can actually get did not exist yet.
For medicine as well, symptom analysis and disease diagnosis was very limited to our level of knowledge. As our knowledge increased, the complexity of our treatment strategies increased, such that there is a large overhead for diagnosis and treatment, just like there is a large overhead for patent disputes.
The difference is that for patents, it probably doesn't need to be as complex as it is, while for medicine, it probably does need to be as complex as it is.
I liked much of your message but your "cure" is worse than the disease. A "free for all" world only benefits the big players. With the current system, as bad as it is, at least the little players can file patents and possibly get bought out to acquire them.
What truly needs to happen is the governments need to recognize that for the markets to work properly we need to promote small and medium size businesses over mega corporations. Megacorps don't need any protections as their size is protection enough. For example, if you hit a small business with a $1million fine you've killed them. Hit big Oil or a mega bank and they most likely made more money off what ever you're fining them for than that tiny penalty.
Given that, I would say we take patents back to what most people that believe in them think they should be about: protecting the little guy. A patent should only ever be applicable to an entity under a certain size. Alternatively, to get a patent you should have to prove that you've invested so much in the development of a patent that not getting it means you're going out of business (e.g. Apple betting it all on the iPhone).
We need to be promoting small businesses, where as right now all legislation seems to give more ammunition to the big companies that already have all the tools.
"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.
"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.
Posner is a legal genius, I just finished law school and we probably read at least 30-50 of his opinions.
He truly understands the field of law and even more, he understands the ramifications that laws and regulations have and how they will affect us in the future. If there was any hope of changing Patent law, this is where its going to start, through Posner.
"forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent"
I don't see how this could help, especially with software patents. For every nonsense patent, you could always hire an intern to code it up in an app. Even if it gives you zero business value, you can claim that you're using it internally (or including it in something that you're selling to users). The courts are not well equipped to debunk such claims.
I mean really, could you quickly determine which pieces of infrastructure at google are actually not useful? Which pieces of iOS code?
And for hardware patents, it seems even worse. If I come up with an awesome idea for implementing an adder on SOI, it might take years and millions of dollars of fab time to get that idea into production. Should Intel be able to take it for free just because they already have a fab ready to go?
There's one big problem with this simplification: In many (perhaps most) industries, small players can innovate by creating new methods that have real value in that sector However these small players are likely too small to be able to bring a full product to market... e.g. they cannot take advantage of the consumer branding value.
Small entities can only hope to be bought by or licence their IP to larger entities to see the fruits of their innovation brought to actual consumers.
Small entities create innovation across the board and the judge is missing out on them here, imagining most relevant patents as being ascertained by large organizations.
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).
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.
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.
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.
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.
"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?
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.
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.
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.
It is entirely possible to discover and develop an invention without being able to implement it.
My best example is a very experienced engineer I used to consult for. In the process of explaining something to me, he had an epiphany and came up with a new method for "leveling" high power battery packs. Over the next few weeks, he tested concepts of the idea and was able to fully describe the design.
Problem? He was an old analog power supply design engineer who knew nothing about programming and the only way his idea would be feasible would be using software. He couldn't build it, so I did, for him. Eventually he patented the idea.
The point is that he could have gone through the entire patent process successfully without a working implementation. Should he have been refused a patent because he didn't have the skills to build it himself? What if he couldn't afford to pay me to implement it? The idea itself is no less valuable: he was obviously capable of explaining it well enough for someone to code the controller. I would argue that it's exactly his type of problem that necessitates a patent: someone with a brilliant idea, who can clearly describe how it should be implemented, but can't afford to do it himself (tooling up to build these things in quantity requires a lot of capital) and is willing to sell that patent to a manufacturer for final implementation.
If it makes you feel any better, the law on the books would preclude your teleportation example, because the patent is required to be written "in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use" teleportation.
Absolutely. I've found that's my litmus test for defining whether a patent is valid or not: "are you making money from developing this idea?". If the author isn't pursuing the product, then he's just defining a general idea and letting others actually work out the details.
Just think about that: the people who would actually do the work and get the product out are preempted by someone who is just sitting on his arse. How is that encouraging innovation?
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.
I assume you know that patenting teleportation is more than just writing down "I patent teleportation."
So, let's so with your example. Someone has an idea for a teleporter, and at great expense comes up with the blueprints that will let it be manufactured. However, it will take $3 billion and 2 years to create a working example.
With patent protection, the inventor can seek out industrial or financial backers to produce it. Those parties can hire their own scientists and engineers to verify that the blueprints ought to work.
"...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.
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.
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.
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.
[+] [-] grellas|13 years ago|reply
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.
[+] [-] ynniv|13 years ago|reply
I feel that a natural line to draw is computability, which rayiner has argued against in another comment. He cites an old communications patent[1] as well as the ARM architecture patents as examples with protecting. I am not familiar with either, but I feel there needs to be a strong metric for patentability. To that end, I propose that we create a collection of patents that those of us whose innovations in software are supposed to be encouraged, feel are worth protecting.
[1|http://worldwide.espacenet.com/publicationDetails/biblio?CC=...]
[+] [-] law|13 years ago|reply
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... at 343
[2] http://books.google.com/books?id=lNitvRLiiBUC&lpg=PA33&#...
[+] [-] cletus|13 years ago|reply
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.
[+] [-] podperson|13 years ago|reply
Meanwhile, if you look at how difficult it was for the concept of usability to break into the mainstream (it essentially required Microsoft's persistent application of market power to popularize ideas borrowed from Apple/Xerox/et al. and Xerox tossed a lot of money and time at PARC just for starters).
If patent law were an easy problem to solve, it would have been solved.
[+] [-] freehunter|13 years ago|reply
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.
[+] [-] daemon13|13 years ago|reply
to clarify/add to your point - when we speak about pharmaceuticals, usually we are speaking about one patented molecule, one...
Before any pharma company can either start producing or outlicense, it shall go through Phase 1, 2 and 3 clinical trials. The cost of those is estimated [if we speak about serious stuff] close to 2-3 billion usd.
[+] [-] PakG1|13 years ago|reply
This sentence has made me think that there seems to be an amazing parallel between the patent industry and medicine. In the past, patents were quite simple and few, and one could see how things should go in patent disputes. Patents did not get complicated at a granular level because the level of knowledge necessary to identify how complex things can actually get did not exist yet.
For medicine as well, symptom analysis and disease diagnosis was very limited to our level of knowledge. As our knowledge increased, the complexity of our treatment strategies increased, such that there is a large overhead for diagnosis and treatment, just like there is a large overhead for patent disputes.
edit: great example: http://xkcd.com/931/
The difference is that for patents, it probably doesn't need to be as complex as it is, while for medicine, it probably does need to be as complex as it is.
[+] [-] flyinRyan|13 years ago|reply
What truly needs to happen is the governments need to recognize that for the markets to work properly we need to promote small and medium size businesses over mega corporations. Megacorps don't need any protections as their size is protection enough. For example, if you hit a small business with a $1million fine you've killed them. Hit big Oil or a mega bank and they most likely made more money off what ever you're fining them for than that tiny penalty.
Given that, I would say we take patents back to what most people that believe in them think they should be about: protecting the little guy. A patent should only ever be applicable to an entity under a certain size. Alternatively, to get a patent you should have to prove that you've invested so much in the development of a patent that not getting it means you're going out of business (e.g. Apple betting it all on the iPhone).
We need to be promoting small businesses, where as right now all legislation seems to give more ammunition to the big companies that already have all the tools.
[+] [-] mtgx|13 years ago|reply
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|13 years ago|reply
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.
[+] [-] bonesinger|13 years ago|reply
He truly understands the field of law and even more, he understands the ramifications that laws and regulations have and how they will affect us in the future. If there was any hope of changing Patent law, this is where its going to start, through Posner.
[+] [-] MichaelSalib|13 years ago|reply
I don't see how this could help, especially with software patents. For every nonsense patent, you could always hire an intern to code it up in an app. Even if it gives you zero business value, you can claim that you're using it internally (or including it in something that you're selling to users). The courts are not well equipped to debunk such claims.
I mean really, could you quickly determine which pieces of infrastructure at google are actually not useful? Which pieces of iOS code?
And for hardware patents, it seems even worse. If I come up with an awesome idea for implementing an adder on SOI, it might take years and millions of dollars of fab time to get that idea into production. Should Intel be able to take it for free just because they already have a fab ready to go?
[+] [-] redwood|13 years ago|reply
Small entities can only hope to be bought by or licence their IP to larger entities to see the fruits of their innovation brought to actual consumers.
Small entities create innovation across the board and the judge is missing out on them here, imagining most relevant patents as being ascertained by large organizations.
[+] [-] jpadkins|13 years ago|reply
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|13 years ago|reply
[+] [-] kiba|13 years ago|reply
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...
[+] [-] crusso|13 years ago|reply
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|13 years ago|reply
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|13 years ago|reply
[+] [-] jandrewrogers|13 years ago|reply
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.
[+] [-] guygurari|13 years ago|reply
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|13 years ago|reply
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|13 years ago|reply
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|13 years ago|reply
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.
[+] [-] HeyLaughingBoy|13 years ago|reply
My best example is a very experienced engineer I used to consult for. In the process of explaining something to me, he had an epiphany and came up with a new method for "leveling" high power battery packs. Over the next few weeks, he tested concepts of the idea and was able to fully describe the design.
Problem? He was an old analog power supply design engineer who knew nothing about programming and the only way his idea would be feasible would be using software. He couldn't build it, so I did, for him. Eventually he patented the idea.
The point is that he could have gone through the entire patent process successfully without a working implementation. Should he have been refused a patent because he didn't have the skills to build it himself? What if he couldn't afford to pay me to implement it? The idea itself is no less valuable: he was obviously capable of explaining it well enough for someone to code the controller. I would argue that it's exactly his type of problem that necessitates a patent: someone with a brilliant idea, who can clearly describe how it should be implemented, but can't afford to do it himself (tooling up to build these things in quantity requires a lot of capital) and is willing to sell that patent to a manufacturer for final implementation.
[+] [-] brlewis|13 years ago|reply
http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35...
Disclaimer: I can't guarantee that the patent system will operate consistent with the law.
[+] [-] dguaraglia|13 years ago|reply
Just think about that: the people who would actually do the work and get the product out are preempted by someone who is just sitting on his arse. How is that encouraging innovation?
[+] [-] PaulHoule|13 years ago|reply
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.
[+] [-] danielweber|13 years ago|reply
So, let's so with your example. Someone has an idea for a teleporter, and at great expense comes up with the blueprints that will let it be manufactured. However, it will take $3 billion and 2 years to create a working example.
With patent protection, the inventor can seek out industrial or financial backers to produce it. Those parties can hire their own scientists and engineers to verify that the blueprints ought to work.
[+] [-] keithpeter|13 years ago|reply
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|13 years ago|reply
[+] [-] RockofStrength|13 years ago|reply
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|13 years ago|reply
[+] [-] losethos|13 years ago|reply
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