http://www.washingtonpost.com/business/technology/famous-judge-spikes-apple-google-case-calls-patent-system-dysfunctional/2012/06/08/gJQAM1bQOV_story.html

Famous judge spikes Apple-Google case, calls patent system “dysfunctional”
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By Jeff John Roberts | GigaOM.com, Published: June 8

A U.S. judge yesterday threw aside a much-anticipated trial between Apple and Google-owned Motorola Mobility over smartphone patents. The decision and a blog comment by the same judge could prove to be a watershed moment for a U.S. patent system that has spiraled out of control.

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement. He said he was inclined to dismiss the case with prejudice — meaning the parties can’t come back to fight over the same patents — and that he would enter a more formal opinion confirming this next week.

The order is extraordinary not only for what it said but for who wrote it. For the unfamiliar, Richard Posner is a legend in legal and academic circles and possesses a resume that makes the typical Supreme Court Justice look like a slouch. He teaches at the University of Chicago and ordinarily sits on the influential 7th Circuit Court of Appeals but, in an unusual development, was assigned to a lower court last December to hear the Google-Apple patent case.

The case is just one of many patent disputes tying the legal system in knots as large companies tangle not only in court but at the International Trade Commission in an effort to ban each others’ products from the market. Critics say the patent system, which awards 20-year monopolies, has run amok thanks to a flood of questionable patents for software, business methods, emoticons and even one for “swinging on a swing.”

In a series of earlier rulings in the Apple case, Posner didn’t mince words as he used plain language to beat up the over-reaching arguments of both sides:

This week, Posner also lashed at the patent system in a blog he shares with economist Gary Becker. In a post about the declining strength of American institutions, he concluded:

The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals.

Posner’s decision to descend from the 7th Circuit to oversee the Google-Apple trial suggests he wished to step in and do something directly about the patent system. (Ordinarily, Posner would never hear a patent case as all patent appeals are sent to the DC-based Court of Appeals for the Federal Circuit; that court has maintained an ideological bias in favor of patent owners despite repeated rebuffs by the Supreme Court).

The backlash against the misuse of patents is coming not just from Posner and the Supreme Court but other federal judges as well. Judge James Robart blasted Motorola and Microsoft in Seattle last week, noting that ”The court is well aware that it is being played as a pawn in a global industry-wide business negotiation.”

It’s unclear how Apple and Google will respond to Posner’s surprise pounding of them. Both companies have so far said nothing and may be waiting for the other shoe to drop via Posner’s formal opinion expected next week. The judge wrote yesterday that he may change his mind but the overall tenor of the first opinion suggests this is unlikely. You can decide for yourself here:

Posner Order

http://www.scribd.com/doc/96427053/Posner-Order

Because they will be the loudest of all. I'm sure the Apple champion in my 'fuck apple' thread will be in here with all kinds of links, talking about how he knows better than this judge how justified these Apple patents are. I hope this judge gives them a verbal tirade that will give congressman Ackerman's verbal ass fucking of the SEC after the Madoff fiasco a run for it's money.

Apple will re-file and continue.

How can I be an Apple champion if I like android devices? Scroll below this post on the first page.

My point is Apple is justified. I proved this before and shut you smoove the fuck down. Microsoft is making more money off Android than most OEMs and no one complains or gets FUCKING MAD and makes posts.

No empathy for white misery (c) BDot

"root for everybody black haters say that's crazy, wow..."

You posted a bunch of links and that was that.

Sure, they're "justified" because they own the patents.... but then, that's precisely NOT the argument here though, is it? It's not an argument about whether or not they currently have the legal right to sue based on whether they own the patents.

So....hate to burst your happy little bubble-way to go, you kinda but not really but at least looked like you scored a point on the internet!!! LMFAO!!!- but not a single word you've said at any point on the matter detracts from the bottom line: Apple is a shining example of patent law gone crazy. THAT'S what this is about.

And guess what?

THE FUCKING JUDGE MORE OR LESS SEES IT MY WAY.

How's that for "smooth shut down"? A guy whose job it is to form *legal* opinions on things and rule on them.... thinks patent laws have gone off the deep end. Which is my point.... That you disagree with... but I got smooth shut down?

I'm in stitches, really.

but not a single word
>you've said at any point on the matter detracts from the
>bottom line: Apple is a shining example of patent law gone
>crazy. THAT'S what this is about.

Microsoft has done the same thing and no one says a word. At first you said those patents were not essential and were proven wrong. You continuously hate on a company that's done NOTHING WRONG. It's America so hate away. But don't act like any company does not have a right to protect their patented technology. If roles were reversed in this trial you wouldn't say a word.
>
>And guess what?
>
>THE FUCKING JUDGE MORE OR LESS SEES IT MY WAY.

You didn't read the article.
>
>How's that for "smooth shut down"? A guy whose job it is to
>form *legal* opinions on things and rule on them.... thinks
>patent laws have gone off the deep end. Which is my point....
>That you disagree with... but I got smooth shut down?
>
>I'm in stitches, really.

It's a failure on your part. This decision will be appealed by Apple and this will go on. These patent lawsuits are beneficial for the industry because it forces corporations to create ORIGINAL products.

No empathy for white misery (c) BDot

"root for everybody black haters say that's crazy, wow..."

>but not a single word
>>you've said at any point on the matter detracts from the
>>bottom line: Apple is a shining example of patent law gone
>>crazy. THAT'S what this is about.
>
>Microsoft has done the same thing and no one says a word. At
>first you said those patents were not essential and were
>proven wrong. You continuously hate on a company that's done
>NOTHING WRONG. It's America so hate away. But don't act like
>any company does not have a right to protect their patented
>technology. If roles were reversed in this trial you wouldn't
>say a word.
>>
>>And guess what?
>>
>>THE FUCKING JUDGE MORE OR LESS SEES IT MY WAY.
>
>You didn't read the article.
>>
>>How's that for "smooth shut down"? A guy whose job it is to
>>form *legal* opinions on things and rule on them.... thinks
>>patent laws have gone off the deep end. Which is my
>point....
>>That you disagree with... but I got smooth shut down?
>>
>>I'm in stitches, really.
>
>It's a failure on your part. This decision will be appealed by
>Apple and this will go on. These patent lawsuits are
>beneficial for the industry because it forces corporations to
>create ORIGINAL products.


^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Patent laws are out of control. End of story, and that change WILL come. It's just a matter of time. I said something about this one because I might be directly effected by it, but that's not why I feel patent laws are fucked up. This intimation that because I didn't have a cow about Microsoft's own shady, shitty ways, it somehow means I'm simply on an anti-Apple crusade is a terrible argument with no legs.

Bottom line, yet again: patent laws for these tech companies are fucking retarded. Period. End of story. Now, you see it differently, and that's all good and well. You're too dense and have your head wedged too far up Apples asshole to understand that the fucking issue here is the shitty patent system that allows trivial shit to get a patent- Apple just happens to be a fine example of that broken system. A simple look at that new "wedge" bullshit is yet another hysterical example.

http://www.engadget.com/2012/06/14/judge-puts-apple-vs-motorola-hearing-back-on-deck/

it's never over

Well, we did ask you to "tune in next week." Just seven days after he tentatively dismissed one of Apple's patent lawsuits against Motorola, Judge Richard Posner has given both sides a chance to prove their cases are worthwhile in a hearing on June 20th. As both sides are claiming damages, Posner wants them to explain if and how they're entitled to a payout should they win, including the possibility of a modest royalty instead of lump sums. Motorola is getting extra scrutiny since it's using standards-based patents that have drawn flak from lawmakers -- it will likely have to say how it thinks FRAND (fair, reasonable and non-discriminatory) licensing requirements for its 3G patent fit into its claims. The judge clearly warns that progress is contingent on Apple and Motorola meeting legal standards; if they fall short, it's not likely they'll get a third chance. Any success will revive the possibility of preliminary product bans, though, and that's something that most won't find something to cheer about.

http://card.mygamercard.net/lastgame/rjcc.png

www.engadgethd.com - the other stuff i'm looking at

It's over. Read what the original poster said.

Someone influential did something that cured all the bullshit.

Geez - learn to comprehend.

You've got handle on your jock now... is this what you really want?

And what exactly was terrible about the article? The judge himself stated he "tentatively decided that the case should be dismissed with prejudice" yet will "delay entry of judgement until I have prepared a full opinion, because in the course of that preparation I may change my mind."

That same tone is adopted by the article so I don't see what the big deal is. Regardless on whether or not it's "over", there's no question that the judge thinks that the patent wars are bullshit (which was the tone and point of *my* post).

Facts about Posner:

- self-assigned himself to a lower court specifically to hear this case
- feels the U.S. patent system is "dysfunctional"
- inclination to dismiss the case "with prejudice"
- doesn't give a fuck about RDF: “More broadly, I forbid Apple to insinuate to the jury that this case is a popularity contest and jurors should be predisposed to render a verdict for Apple if they like Apple products or the Apple company or admire Steve Jobs, or if they dislike Motorola or Google.”

So now, instead of outright dismissing the case because of bullshit, he'd rather hear both sides then call them out on their bullshit.

Now, to clarify, nowhere have I said this is "over"... my position this entire time has been that patent law is being manipulated into extremely broad interpretations, crossing the border into "bullshit".

I have no problems with companies protecting their IP, but Apple's taking it to unprecedented new heights.

http://card.mygamercard.net/lastgame/rjcc.png

www.engadgethd.com - the other stuff i'm looking at

http://www.theverge.com/2012/6/20/3101619/judge-posner-apple-motorola-injunction-hearing

Apple v. Motorola: Judge Posner grills both sides on issue of product bans
By Chris Ziegler on June 20, 2012 04:22 pm

Attorneys for both Apple and Motorola appeared before renowned judge Richard A. Posner this morning in a Chicago federal courtroom in an attempt to explain why the court should order an injunction against the other's products. Posner made headlines recently for tentatively dismissing the case altogether before ultimately deciding to give both parties another chance to prove that either side has demonstrated the need for an injunction against the other's products that could prevent sales and shipments, present and future.

The ongoing case currently involves four Apple patents:

6,493,002 — covers a status window, such as a notification window, laid over the top of the regular program / app display window and having one or more interactive icons or display modules.
6,343,263 — covers signal processing APIs, such as video-image processing, allowing for realtime interaction between two or more subsystems.
7,479,949 — covers multi-dimensional scrolling heuristics. For instance, an upward or downward finger swipe that starts off along an angular path, that's not perfectly vertical, will still be interpreted and locked in as a pure vertical movement to prevent horizontal scrolling.
5,946,647 — this is the infamous "data tapping" patent for automatically converting things like phone numbers and email addresses into actionable links that open a menu of options, like calling the number or adding the number to your contact list.
Meanwhile, Motorola is asserting US patent 6,359,898, which is frequently referred to as "the countdown patent" and involves some efficiency tweaks in cellular communications that are considered standards-essential to GSM.

Posner didn't make any rulings at the hearing — instead, he used the roughly two-hour session to ask questions of both sides and get clarifications on briefs that they'd filed earlier in the week. The judge has earned a reputation for being animated, entertaining, and easily frustrated by the minutiae of the case, and he delivered once again during an exchange with Apple's lawyers. Posner sought information on why Cupertino wouldn't be satisfied with a compulsory licensing scheme that would require Motorola to pay a lump sum and / or an ongoing royalty for one or more of the patents allegedly being infringed upon rather than an outright injunction, which he says could have "really catastrophic effects" for the infringing company:

Posner: "So would you be asking for an injunction that would give them three months to substitute real-time..."

Apple: "Exactly. We're not asking them to stop selling Android phones, we're asking them to do something that they've said they could easily do. Use their technology, not ours."

Posner: "Would you consider an ongoing royalty as a satisfactory substitute?"

Apple: "No."

Posner: "Why not?"

Apple: "The law says" that companies should not be subject to compulsory licensing.

Posner: "That's not what the law says. The law says that it's a type of injunctive relief."



Posner: "You can't just assume that just because someone has a patent, he has deep moral right to exclude everyone else from using it. That's why we have this principle that the equity judge can substitute a compulsory license for an injunction."

Apple: "The practical reason is the difficulty in measuring harm. None of the party's attempts to measure what such a royalty would be are adequate."

Posner: "But that's because you didn't prepare a good damages case. You certainly believe it's possible to compute damages for the infringement today, so why doesn't that apply that you could've established a reasonable royalty for the future?"

Apple: "The right to exclude is something that shouldn't be taken away lightly."

Posner: "Well, you think you have a right to Motorola's patents because they're standards-essential..." After three months, Motorola comes up with its own solution, and you have nothing. With licensing, you establish a stream of income.

Apple: "Respectfully, it's the patent holder's choice."

Posner: "But you have to explain to me why it's a rational choice. "What's to prevent you after three months from suing them again and saying it's still infringing?"

Apple: We can file a new suit.

Posner: "Great, that's all we need, new suits. There aren't enough lawsuits worldwide between Apple and all the Android manufacturers."

Motorola has just one patent claim remaining against Apple — the so-called '898 patent, which is essential to GSM and has been licensed under FRAND terms, Apple says, to several dozen companies in the past. Posner came right out and stated that he didn't "see how you can have an injunction against the use of a standards-essential patent." To use Apple's phraseology, the patent has become Motorola's "last stand" against the patent claims looming against it. Interestingly, though, Apple says that the '898 is standards-essential in name only, claiming that the feature defined by it isn't actually used in practice and has "an effective value of zero":

"Here we have a feature with an effective value of zero. That's the sole benefit that the '898 in theory provides, is that the base station might have a little bit more advance notice to reallocate its resources and be more efficient. That supposed benefit of the 898 patent is not used by the base station to do so. There are no benefits from it because they don't use that feature at all. They reallocate resources when the countdown timer is zero. So here you have this feature whose value is infinitesimally small this is attempted extortion and an attempt to drive up the value, which is zero."

Though Posner left the bench today without tipping his hand, he showed a lot of skepticism toward the notion that an injunction would be an appropriate relief, suggesting that a full-on ban of sales would be a severe punishment for features that few customers likely care about enough to affect "goodwill" toward either company. Talking about Apple's '002 patent — which dates back to 1994 and may be infringed by Android's notification window because of the way it is visually unobstructed by other applications — Posner said "I find it hard to believe anyone would care about such a thing," noting that "this may be just a minor annoyance to consumers, and maybe we should have a small royalty for the one in one thousand customers who are annoyed by this. That would be fine."

There's no indication yet when Posner may make a final ruling.

Matt Macari contributed to this report.

Long article, no swipe. Really great read though, giving insights into Posner's position regarding each specific patent in question (and really highlighting how absurd some of the litigation damages are assessed by the two companies).

http://www.jdsupra.com/post/documentViewer.aspx?fid=a427e775-beb7-482b-91ca-d9dc13bffda1

---
Love,
Nopayne

http://www.theverge.com/2012/6/22/3111607/apple-v-motorola-judge-posner-dismisses-entire-patent-case?utm_source=dlvr.it&utm_medium=twitter

"take your shit and gtfo of my courtroom." i wish he would have just said that.

>http://www.theverge.com/2012/6/22/3111607/apple-v-motorola-judge-posner-dismisses-entire-patent-case?utm_source=dlvr.it&utm_medium=twitter

GamerTag and PSN: PokeEmAll

>"take your shit and gtfo of my courtroom." i wish he would
>have just said that.

People are forgetting that this is a countersuit. Motorola sued Apple first and the ensuing countersuit resulted in wasting Motorola's resources.

Meanwhile Apple is protecting its' IP both domestically and abroad.

W.

No empathy for white misery (c) BDot

"root for everybody black haters say that's crazy, wow..."

-------------------------
“The other dude after me didn’t help my case. It was just like…crazy nigga factory going on.”
Dre makes no apologies for his own eccentricities. “I was young, and searching, trying to find myself,” he says. “Never did.”-- Andre B

http://www.reuters.com/article/2012/07/05/us-apple-google-judge-idUSBRE8640IQ20120705

Judge who shelved Apple trial says patent system out of sync

By Dan Levine
CHICAGO | Thu Jul 5, 2012 8:42am EDT

(Reuters) - The U.S. judge who tossed out one of the biggest court cases in Apple Inc's (AAPL.O) smartphone technology battle is questioning whether patents should cover software or most other industries at all.

Richard Posner, a prolific jurist who sits on the 7th U.S. Circuit Court of Appeals in Chicago, told Reuters this week that the technology industry's high profits and volatility made patent litigation attractive for companies looking to wound competitors.

"It's a constant struggle for survival," he said in his courthouse chambers, which have a sparkling view of Monroe Harbor on Lake Michigan. "As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem."

Posner, 73, was appointed as a federal appeals court judge by President Ronald Reagan in 1981 and has written dozens of books, including one about economics and intellectual property law.

Posner, who teaches at the University of Chicago, effectively ended Apple's lawsuit against Google Inc's (GOOG.O) Motorola Mobility unit last month. He canceled a closely anticipated trial between the two and rejected the iPhone maker's request for an injunction barring the sale of Motorola products using Apple's patented technology.

Apple is in a pitched battle with its competitors over patents, as technology companies joust globally for consumers in the fast-growing markets for smartphones and tablet computers.

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents.

"It's not clear that we really need patents in most industries," he said.

Also, devices like smartphones have thousands of component features, and they all receive legal protection.

"You just have this proliferation of patents," Posner said. "It's a problem."

GENERATION SMARTPHONE

The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it.

Federal appellate judges occasionally offer to preside over district court cases. Posner had alerted the district judges of his interest in patents, so after part of the smartphone battle landed in Wisconsin federal court, the judge there transferred the case to him.

When Posner began working on the smartphone case, he told the litigants he was "really neutral" because he used a court-issued BlackBerry made by Research In Motion Ltd (RIM.TO). He soon accepted an upgrade to an iPhone, but only uses it to check email and call his wife, he said.

"I'm not actually that interested in becoming part of the smartphone generation," he said.

Posner's corner office is filled with the requisite library of law tomes, and a row of books he wrote sits alongside his family photographs. He also has a signed photograph from the late Supreme Court Justice William J. Brennan Jr., for whom he clerked in the early 1960s.

Judges rarely speak openly to the press, but Posner is outspoken on a range of topics. Last week in online magazine Slate, he penned a withering critique of U.S. Supreme Court Justice Antonin Scalia's recent dissent in the Arizona immigration case.

"It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads," Posner wrote.

MOTOROLA V. APPLE

Motorola sued Apple in October 2010, a move that was widely seen as a pre-emptive strike. Apple filed its own claims against Motorola the same month.

In canceling the trial, Posner said an injunction barring the sale of Motorola phones would harm consumers. He also rejected the idea of trying to ban an entire phone based on patents that cover individual features like the smooth operation of streaming video.

Apple's patent, Posner wrote in his June 22 order, "is not a claim to a monopoly of streaming video!"

Not all judges in the patent wars share Posner's skepticism of injunctions. U.S. District Judge Lucy Koh in San Jose, California, granted Apple two critical pretrial injunctions against Samsung Electronics Co Ltd (005930.KS) last week: one against the Galaxy Tab 10.1, and the other against the Galaxy Nexus phone.

In Friday's 101-page ruling barring the Galaxy Nexus, Koh cited the harms to Apple due to competition from phones that infringe its patent on the Siri search feature. Samsung is appealing both injunctions.

Posner said he had not read Koh's orders.

In his own ruling, Posner also barred Motorola from seeking an injunction against the iPhone because the company had pledged to license its patent on fair and reasonable terms to other companies - in exchange for having the technology adopted as an industry standard.

Posner's idea of examining whether industries like software should receive patent protection is a mainstream one, especially in the computer industry, said John Allison, a professor at University of Texas at Austin who studies intellectual property rights.

However, recent patent law reforms passed by the U.S. Congress did not directly address the issue, and Allison said classifying industries for the purposes of intellectual property protection - as Posner suggests - was "completely impractical" because talented lawyers could game the system.

When it comes to the smartphone litigation wars, Posner said tech companies should not be blamed for jumping into court since they are merely taking the opportunities that the legal system offers.

Given the large cash reserves in Silicon Valley, high legal fees are not a deterrent. Apple, for instance, had $110 billion in cash and securities as of March 31.

"It's a small expense for them," Posner said.

Posner said he had been looking forward to presiding over a trial between Motorola and Apple, but had no other choice than to toss the case.

"I didn't think I could have a trial just for fun," he said.

Just asking. (And yes, I know the vast amount of activist judges don't speak openly - they cloak their activism.)

But, as objective as I'm trying to be, it does sound like Posner is on the level regarding patent reform (like how he got on Motorola's case for trying to claim infringement on a FRAND patent).

This whole case would be insignificant if it was some lesser judge, but the fact that he's basically one of the most influential judges ever (regardless of some of his very controversial positions) gives me hope that the bullshit patent system can actually be reformed from the ground up.

activist judges, smh.

Can't blame you lay people for falling for that bullshit, but it still ticks me off.

one
k. orr, esquire.

Fuck patent trolls, fuck defensive patenting, and fuck the whole (software) patent process

http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/

Why There Are Too Many Patents in America
JUL 12 2012, 10:20 AM ET 42
After dismissing a high-profile suit between Apple and Motorola, one of our leading jurists discusses the problems plaguing America's intellectual property system.

http://cdn.theatlantic.com/static/mt/assets/business/615_Patent_Phone_AppleShaped_USPTO.jpg

(U.S. Patent and Trademark Office)
Recently, while sitting as a trial judge, I dismissed a case in which Apple and Motorola had sued each other for alleged infringement of patents for components of smartphones. My decision undoubtedly will be appealed, and since the case is not yet over with it would be inappropriate for me to comment publicly on it.

But what I am free to discuss are the general problems posed by the structure and administration of our current patent laws, a system that warrants reconsideration by our public officials.*

U.S. patent law confers a monopoly (in the sense of a right to exclude competitors), generally for 20 years, on an invention that is patented, provided the patent is valid -- that is, that it is genuinely novel, useful, and not obvious. Patents are granted by the Patent and Trademark Office and are presumed valid. But their validity can be challenged in court, normally by way of defense by a company sued by a patentee for patent infringement.

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.

The prime example of an industry that really does need such protection is pharmaceuticals. The reasons are threefold. First, the invention of a new drug tends to be extremely costly--in the vicinity of hundreds of millions of dollars. The reason is not so much the cost of inventing as the cost of testing the drug on animal and human subjects, which is required by law in order to determine whether the drug is safe and efficacious and therefore lawful to sell. Second, and related, the patent term begins to run when the invention is made and patented, yet the drug testing, which must be completed before the drug can be sold, often takes 10 or more years. This shortens the effective patent term, which is to say the period during which the inventor tries to recoup his investment by exploiting his patent monopoly of the sale of the drug. The delay in beginning to profit from the invention also reduces the company's recoupment in real terms, because dollars received in the future are worth less than dollars received today. And third, the cost of producing, as distinct from inventing and obtaining approval for selling, a drug tends to be very low, which means that if copying were permitted, drug companies that had not incurred the cost of invention and testing could undercut the price charged by the inventing company yet make a tidy profit, and so the inventing company would never recover its costs.

So pharmaceuticals are the poster child for the patent system. But few industries resemble pharmaceuticals in the respects that I've just described. In most, 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.

I would lay particular stress on the cost of invention. In an industry in which teams of engineers are employed on a salaried basis to conduct research on and development of product improvements, the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant. It is true that the easier it is to get a patent, the sooner inventions will be made. But "patent races" (races, induced by hope of obtaining a patent, to be the first with a product improvement) can result in excessive resources being devoted to inventive activity. A patent race is winner take all. The firm that makes an invention and files for a patent one day before his competitors reaps the entire profit from the invention, though the benefit to consumers of obtaining the product a day earlier may be far less than the cost of the accelerated invention process.

Moreover, a firm that can get along without patent protection may have compelling reasons to oppose such protection because of fear of how its rivals may use it against the firm. 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.

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.

These problems are aggravated by several additional factors. One is that the Seventh Amendment to the U.S. Constitution confers a right to a jury trial in cases in federal court if the plaintiff is asking for an award of money damages, as plaintiffs in patent infringement suits normally do. Judges have difficulty understanding modern technology and jurors have even greater difficulty, 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. Notice too--an independent problem with current patent law -- that difficulties of search, and the prospect of incurring litigation costs to defend an infringement suit, may actually discourage innovation.

Another troublesome factor is that the Patent and Trademark Office is seriously understaffed. As a result, many patent examinations are perfunctory, and there is a general concern that too many patents are being issued, greatly complicating the problems I've been discussing. There is now a three-year backlog in the office--a three-year delay on average between the filing of a patent application and the decision by a patent examiner on whether to grant the application.

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.

I am not enough of an expert in patent law to come down flatly in favor of any of the reforms that I have listed. 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.

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*This issue is separate from what is presented to a court in a patent case. Lawsuits are governed by existing law as interpreted by the Supreme Court and the U.S. Court of Appeals for the Federal Circuit, which has (under the Supreme Court) exclusive jurisdiction of appeals in patent cases.

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Love,
Nopayne