Editor in Chief
Reason Alive in US Court System; Posner Writes op-ed: '..Too Many Patents in America'
It seems that the light of reason is still burning brightly in the U.S. Court system, it's just harder to find. One particular judge is keeping the flame burning, and we have written about him in the past. His name is Judge Richard Posner, and he was the same judge who dismissed the Motorola vs. Apple patent case with prejudice. Many consider Judge Posner to be one of the most respected and brilliant intellectualists sitting on the bench currently, and a new op-ed he wrote for TheAtlantic.com goes a long way toward proving that. The title of this opinion piece from Judge Posner is "Why there are too many patents in America."
In it he opens eloquently with a simple statement that, "...[our patent law system] warrants reconsideration by our public officials." Furthermore, he ends his editorial with the following, "I wish merely to emphasize that there appear to be serious problems with our patent system, but almost certainly effective solutions as well, and that both the problems and the possible solutions merit greater attention than they are receiving." In the world of tech, and especially the smartphone tech-world, these statements should perk the interest of many, because it shows that someone within the system has a wise head on their shoulders. The Congressional hearing that convened earlier this week should take notice.
Throughout his piece, Judge Posner makes some incredible simply and relevant points that should get any reasonable person thinking differently. Here are a couple more quotes that stand out,
He also said,
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. Defensive patenting means 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. The cost of patenting and the cost of resolving disputes that may arise when competitors have patents are a social waste.
And, he offered these potential solutions,
"Yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats -- even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing. This problem is exacerbated by the fact that in some industries it is very difficult to do a thorough search of patent records to discover whether you may be infringing someone's patent; and even if doable, the search may be very expensive.
Patent trolls are companies that acquire patents not to protect their market for a product they want to produce -- patent trolls are not producers -- 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.
We thought that with all the bad news regarding the patent wars we constantly have to inundate you with, that it would be worthwhile and enjoyable to share something positive for a change. Who knows if Judge Posner's article will reach the right people and make a difference, but at least we know that there are people working within the system, who realize that a change needs to be made. Ironically, Judge Posner admits that he isn't even a patent expert, so if he can come to these conclusions simply by using reason and logic, then perhaps people who can make changes to the system will listen. His piece is a simple and easy read. We encourage you to check it out at the source link below, and then come back to comment in our thread!
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; 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.
Thanks for the tip, nikecar!
07-13-2012 09:42 AM