Last week we reported that Judge Richard Posner, a prolific jurist who sits on the 7th U.S. Circuit Court of Appeals in Chicago, was questioning the need for software patents.
Posner, who dismissed the Apple-Motorola case that involved alleged infringement of patents for smartphone components, has written a piece for The Atlantic in which he describes his desire to see patent law reformed in the United States.
“With some exceptions, U.S. patent law does not discriminate among types of inventions or particular industries. This is, or should be, the most controversial feature of that law. The reason is that the need for patent protection in order to provide incentives for innovation varies greatly across industries,” he writes, adding that “most industries could get along fine without patent protection.”
Posner warns of the risk of monopolies in an environment where so many patents are granted: “A patent blocks competition within the patent’s scope and so if a firm has enough patents it may be able to monopolize its market. This prospect gives rise to two wasteful phenomena: defensive patenting and patent trolls.”
He describes defensive patenting as “getting a patent not because you need it to prevent copycats from making inroads into your market, but because you want to make sure that you’re not accused of infringing when you bring your own product to market.”
Patent trolls are “companies that acquire patents not to protect their market for a product they want to produce…but to lay traps for producers, for a patentee can sue for infringement even if it doesn’t make the product that it holds a patent on.”
Posner suggests the following actions: “reducing the patent term for inventors in industries that do not have the peculiar characteristics of pharmaceuticals that I described; instituting a system of compulsory licensing of patented inventions; 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; forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent; and (what is beginning) provide special training for federal judges who volunteer to preside over patent litigation.”
Last week we reported that Judge Richard Posner, a prolific jurist who sits on the 7th U.S. Circuit Court of Appeals in Chicago, was questioning the need for software patents.
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