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

339 points by sutro 14y ago

georgemcbay 14y ago
We don't need patents in any industries at all if you judge them based upon their original intent -- to further the public knowledge (the temporary monopoly was meant to be a reward for that, not the main reason for patents). It is difficult to overestimate our combined ability to reverse engineer virtually any type of product made these days and in that sense patents aren't very useful anymore relative to their original purpose.
- StavrosK 14y ago
  Wasn't their original intent to protect the inventor's R&D investment by ensuring that he would be the sole beneficiary of the invention for a time? Easily reverse-engineering products makes the initial purpose even more necessary.
  - nas 14y ago
    Not as I understand it. The intent was to provide an alternative to "trade secrets". In exchange for disclosing how your great new invention works, you get a limited monopoly on it. Modern patents don't work this way. Seriously, who reads patents to learn who new inventions work? I'm sure there is someone who does but mostly they are just dense legal mumble-jumble. Also, it seems most of them are totally obvious that don't need a detailed explanation of the "invention".
    - mistercow 14y ago
      >Seriously, who reads patents to learn who new inventions work? I do sometimes, actually. But you're right that it's not a very understanding-conducive format. They're more concerned with making sure the claims are watertight than making sure the public can figure out what's going on in them.
      - gruseom 14y ago
        They're more concerned with making sure the claims are watertight As far as software patents go, if their claims are "watertight" it must be in some technical legal realm that is utterly removed from the field of invention. As software designs, the vast majority (that I've seen) are risible.
    - abecedarius 14y ago
      I once read large parts of http://www.google.com/patents/US4614319 http://www.google.com/patents/US4614319 out of curiosity. The way it's written to actually explain the ideas shows up how most patents aren't.
    - antidoh 14y ago
      My understanding is that it can be dangerous for a company significantly affected by IP for its employees to read any patents. If that doesn't fly in the face ...
      - georgemcbay 14y ago
        This is true. If you violate a patent while knowing about the patent you are violating you can be on the hook for triple (treble in lawyer-speak) damages compared to a violation where you didn't know of the patent previously. For this reason, a lot of companies I've worked for have had a blanket policy requesting that software developers never read patents, especially in areas the company is working in. Of course the fact that you can very easily violate many patents without having ever read them is just more evidence that the patent system isn't currently serving a useful purpose for anyone but patent trolls and lawyers.
  - abecedarius 14y ago
    If you go back the right number of centuries, the original intent was for a revenue source for the Crown. http://en.wikipedia.org/wiki/History_of_patent_law#England http://en.wikipedia.org/wiki/History_of_patent_law#England
  - jandrewrogers 14y ago
    The original intent of patents, long forgotten, was to limit the use of trade secrets. Trade secrets have the unfortunate property that the public state-of-the-art can be decades behind the private R&D. This was endemic during the times of guilds. The reversion to a use of trade secrets, at least in software (because patents are largely unenforceable), is recreating some of the issues that patents were intended to avoid. In my own area of computer science, the private state-of-the-art is at least half a decade ahead of academia. This was the situation that patents were intended to avoid.
    - ZeroGravitas 14y ago
      If academia is only 5 years behind then it doesn't seem a good deal for the public to give 20 years monopoly on ideas, particularly so if those ideas build on top of each other and lead to patent gridlock. (Of course in reality, academia is part of this patent gridlock, but the general point remains)
      - jandrewrogers 14y ago
        The point is more that academic research is reinventing the wheel rather than doing genuinely productive research. Instead of researchers researching stuff that needs to be researched, a significant number of them are researching things that other researchers have known the answer to for years. It is not an effective use of human capital.
  - brlewis 14y ago
    The US Constitution authorizes congress "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" In the jurisdiction relevant to this article (i.e. United States) the original intent was to promote progress.
- josteink 14y ago
  We don't need patents in any industries at all if you judge them based upon their original intent -- to further the public knowledge Good to see this one mentioned. Most people seem to forget that the original intent for all "IP-laws" originally was to broaden the public knowledge and to ultimately benefit the public. That private entities was incentivized with limited monopolies which they could use to profit was merely a means, not the goal. These days everyone takes for granted that the means is the goal and the original goal is long forgotten. If the original intent hadn't been forgotten as well as it has at this point, I doubt we would have seen the massive expanse of "IP-laws" which we have seen these last decades. Heck, back in the days there was no such thing as "IP". People were rational enough to realize there is no such thing as "intellectual property" which you can possess in a meaningful way. Copyright law, patent-law and all these "IP-laws" should be reverted back to their original intent. Unfortunately that is not going to happen. The US has way too much invested in so called "intellectual property" to go back on this now. Look at the US these days. What brings in the money? Traditional industry? All gone. Manufacturing? All outsourced. In fact all the US has left of value is "intellectual property". Think Microsoft, Apple, Google and Hollywood. Now imagine the current US without the likes of those, or a world where their "property" could be had by anyone at no cost. Where would the US be then? For all the bad things IP laws brings about (and don't get me wrong, I do think they are bad) there is a reason the US (and mostly the US) is pushing so hard on copyright-law and patent-law and trying to divert us from their original intent by instilling the idea of "intellectual property" as a legitimate one in the public mind. Right now, this so called "intellectual property" is the only thing the US have left.
gringomorcego 14y ago
Patents and IP protection are a sovereign prisoner's dilemma. Good luck with that, USA.
- dstorrs 14y ago
  You do realize that Tit For Tat is the dominant strategy of PD, right? [1] [1] Ok, not strictly true. Other strategies can dominate under certain conditions (finite and pre-known number of iterations, possibility of signal error, etc) but I don't feel that those conditions apply in this case.
  - gringomorcego 14y ago
    This prisoner's dilemma has one round with different rewards. Also, don't correct people with 'you do realize' because it makes you seem like an asshole.
kenjackson 14y ago
Posner's right. It seems that there needs to be some new notion of what constitutes patentability. Drugs are an interesting case as they have these factors going for it: 1) Expensive to bring IP to market. Lots of testing and clinical trials for drugs. For SW it is pretty cheap now. 2) Easy and cheap to copy. Generic versions can be reverse-engineered quickly. Probably just as easy to copy software, but I still feel like this is probably a useful pillar. 3) The IP by itself constitutes the majority of the value of the product. In medicine there isn't typically tons of other IP around that come together to form the product. In SW there is rarely a single piece of IP that is more than a small fraction of the value of the product. 4) The IP has longevity as a standalone product. Viagra can be sold for decades. Aspirin still probably does hundreds of millions in revenue. There is little SW IP that, by itself, has longevity. The nature of SW is to continuously improve it. 5) Time to market isn't a huge advantage. Since most medicine is just sold as effectively a commodity, being 6m ahead of your competition usually just means you have 6 extra months of revenue. Whereas in SW it also means that gives you 6 months to build on your current IP. In medicine you don't typically do Viagra 2.0, with a boatload of new IP that makes the original obsolete (and hence any competitors shipping the old version scrambling).
- exDM69 14y ago
  The society needs to find a new way to give incentives for drug development. Patents may seem to solve the problem from the drug company's point of view, but it keeps the price of drugs prohibitively high for the less fortunate of us. So there are billions of people in the world who are left without medication or use wrong medication because of intellectual property licensing and pricing issues. This leads to unnecessary suffering and other bad things like antibiotics overuse (particularly in India) and drug-resistant strains of deceases.
- Jach 14y ago
  Drugs are typically presented as the crown jewel for patents, but an examination of the modern drug industry destroys that notion for me. Some decent arguments can be found here: http://www.dklevine.com/papers/imbookfinal09.pdf http://www.dklevine.com/papers/imbookfinal09.pdf
lwat 14y ago
I really do think we'll be better off on average scrapping patents in ALL industries. Sure there's some positives in patents but the negatives far outweigh them in my opinion.
- colinshark 14y ago
  There is one industry that is similar to software, but it has absolutely no intellectual property protection besides trademarks. It's the fashion industry. It moves at a breakneck pace. Nobody claims the fashion world is dying or moving too slowly because of lack of legal monopoly protection. The competition is fierce, and consumers are rewarded with many great options. I'm sure other industries would do fine without patents.
  - adavies42 14y ago
    Home sewing is killing fashion! http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewing.svg http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewin...
Fando 14y ago
Amen to this man!
TwoBit 14y ago
I wonder if this is going to cause some companies to throw money at politicians to get rid of Posner.
- fmitchell0 14y ago
  Federal judges have lifetime appointments. http://en.wikipedia.org/wiki/United_States_federal_judge http://en.wikipedia.org/wiki/United_States_federal_judge
- gersh 14y ago
  He has a lifetime appointment as a judge. Only 9 judges have ever been removed in the history of the country. It isn't likely that he will be removed. They can just appeal his decisions.
  - TwoBit 14y ago
    Sure, but they can still steer cases away from him, no?
    - gersh 14y ago
      His appellate court has jurisdiction over the federal courts in Wisconsin, Illinois, and Indiana. The chief district judge assigns cases. The chief judge designation is based upon seniority, and all of the district judges have lifetime appointment as well.
littlemerman 14y ago
Posner is awesome.
DigitalSea 14y ago
most industries? No. Some industries? Yes. I am a firm believer that patents do not belong in software at all. They're used to litigate not innovate and how often has a developer truly come up with a software technique that isn't in some form prior art? Most of the things that Oracle was arguing in the Google case were in-fact techniques that have been used in mathematics long before programming ever became a viable choice as a career (the rangeCheck point in the case is a prime example). I think patents should only be for actual products, something you can hold in your hand. People like Apple trying to patent things like slide to unlock are idiots, you shouldn't be able to patent a movement. As it has been shown many times, software patent litigation is a joke. Patent something real or GTFO. Look at people like James Dyson the dude has tonnes of patents all mostly on real products and techniques for doing unique things in the case of Dyson suing for competitors stealing his patented methods of cyclonic vacuum cleaners that's a real patent lawsuit right there, not arguing over whether or not a swipe is a zero length touch.
- dk 14y ago
  Actually Oracle only made two patent infringement claims against Google -- rangeCheck wasn't one of them -- and Google didn't argue prior art against either of them. ETA: They argued non-infringement.
  - DigitalSea 14y ago
    That's fair enough. I don't know a whole lot about these things but I guess my intentions as to what I was trying to say were pretty clear. Thanks for clarifying that for me though.
  - felipeko 14y ago
    Just for correctness, Oracle made 7 patent infringement claims against Google, and was left with only 2 by the time of the trial because of the reexaminations. And Google didn't argue invalidity because they agreed (to streamline the trial).
antidoh 14y ago
Patents are for inventions, but software patents are used to insulate whole products from competition.
idspispopd 14y ago
I don't see patents, or patent defence as a problem. The problem is that patents are being granted for lowest-bar "innovations", which are leading to these cases by companies that are merely using it as yet another competition tactic. In tech we're seeing patent cases are over trivial, often minor, features which others can accidentally infringe upon without noticing. Pharma is a different beast, it's much more difficult to have a low-bar pharmaceutical, usually by the time the work is done the medication far exceeds the threshold of patentability. (Patent exploitation does still happen, as others have pointed out with insincere drug enhancements.) It's not about regulating specific industries(which would be exploited), but rather about raising the bar on what is indeed an original invention. The blame for this mess lay on the USPTO. The patent system is being run like a commercial entity. A granted patent will attract over $5,000 in fees to USPTO, a rejected patent will only garner $125, with much of the granted fees attributed to curiously undefined 'maintenance' cost. http://www.uspto.gov/inventors/patents.jsp#heading-6 http://www.uspto.gov/inventors/patents.jsp#heading-6
monochromatic 14y ago
Regardless of where one stands on questions of patent policy, it is ridiculous to praise a trial judge for ignoring binding precedent. (Yes, I know Posner is an appellate judge. He was sitting by designation as a trial judge in Apple v. Motorola.)
- brlewis 14y ago
  Are you saying he ignored binding precedent in his court opinion, or in what he said to the press? I'm inclined to accept grellas' assessment that Posner's court opinion was on solid ground: http://news.ycombinator.com/item?id=4086642 http://news.ycombinator.com/item?id=4086642
kenster07 14y ago
A patent holder should -never- be able to ban an entity from using an idea in one of their products, if our society's priority to maximize quality of life ('if' because it is clearly not a priority for certain entities). The patent system needs to balance the need for an incentive to invent, with the goal of maximizing quality of life. The current state of the American patent system stagnates society on multiple levels: 1) Patents, in too many cases, are a prohibitive barrier to entry for entrepreneurs. We have a system in which entrepreneurs know that if an adequately wealthy corporation were to knowingly file frivolous patent lawsuit, the cost, time, and energy to defend such a lawsuit could threaten the life of a fledgling business. Such a system can only have a chilling effect on entrepreneurship and economic growth. Trying to improve the world should -not- feel like walking on a minefield, and until that is fixed, our economy is not receiving the full benefit of its entrepreneurs. 2) Another inventor may be able to use a patented idea as a component for a broader, more useful (patentable) idea. A patent holder should not be able to prevent the development of innovations based upon their own. 3) In many cases, the inventor is not the best producer of his own invention. Society, as a whole, is best off when the best inventions can be produced by the most capable producers, and a patent holder should never be able to prevent this optimal economic arrangement. American society generally values creativity far more than productivity, as reflected not only in its patent system, but in its popular culture, heroes of industry, etc. But in terms the health and sustainability of society, and economic output, productivity is at least as important. If Americans don't collectively acknowledge this, broader economic, and ultimately geopolitical, consequences will continue. As a minimal solution to reverse these trends, I would suggest that patent holders be stripped of the ability to prevent others from being able to use their ideas in a product, but should be able to retain the ability to charge reasonable royalties. Thus, our society may be able to approach a healthier balance between its need for innovation and production.
- MBCook 14y ago
  Compulsory licensing may help in some areas, but the way things are going in the computer industry I don't think it would be enough. Even if you only charge $0.05 per unit, that can still be a big problem. How many ridiculous software patents do you think something like a common smartphone must infringe on. If you infringe on 100 patents ("ability to tap on icon", "drag gesture to move things", "method for turning down volume", etc.) that's a $5.00 cost per phone. A low end phone may only cost $200 unsubsidized. If you only make $30 per phone, that's over 15% of your profits. The core issue still exists. None of this would be as much of a problem if software patents were required to be much better defined and extraordinary, were granted faster, could be invalidated with prior art or independent invention, didn't last as long, and there was some sort of damage limit. Right now, if the iPhone infringes on some patent that objectively covers 0.02% of the software on the phone, the patent holder can still go after tons of money. The damages aren't tied to the utility. If Apple won the slide to unlock patent, and (due to the scope) could only win $0.001 per Android device sold... would they have still done it? What if (again, due to scope) they couldn't get an injunction on something so small?
WalterBright 14y ago
As far as I know, before 1989 or so there were hardly any patents on software, and that didn't inhibit innovation or the breakneck pace of software development in the slightest.
haberman 14y ago
As much as I love seeing some straight talk on the patent issue, it seems dangerous for a judge to have the appearance of injecting his opinions about what laws ought to be into the judicial process. He specifically requested to be put on a high-stakes patent case, then immediately threw the case out and started making public and vocal arguments against patents in tech? I'd love to see him be our champion for sanity for this system (since our squabbling legislature can barely keep us from defaulting on our debt, let alone tackle patent reform), but this just seems to draw a huge target on his back for complaints of "judicial activism."
- jlarocco 14y ago
  Yeah, I was thinking the same thing. It's convenient that I agree with his opinion, but I'm a little uncomfortable with the way he's going about things.
- user49598 14y ago
  Laws aren't god given. They are to be interpreted or even ignored by anyone who finds themselves in the legal system. Thats why jury nullification exists, and thats why judges have jobs. At the end of the day it's just humans making decisions about other humans and if your firm belief is not in line with the law you have the opportunity to express that.
  - josephlord 14y ago
    Jury nullification Yes (its a form of direct democracy). Judges making up the law No (its an undemocratic attack on the rule of law). Interpretation of ambiguities is one thing but just ignoring parts is not OK. It would leave everyone with no rules to follow just different judges with different views to persuade in each case. If there is a real disagreement between law and what the judge thinks is right they should rule in favour of the law (but grant sanctions etc. as close to just as possible). He/she can then publicly complain about the law or run for congress to change it. Please note that I am in favour of what the Judge has said but think that if his ruling stands it is a big change in the law and it is the wrong way to do that.
shmulkey18 14y ago
Econtalk has some nice podcasts on IP issues, including patents: Epstein on Property Rights and Drug Patents http://www.econtalk.org/archives/2007/02/richard_epstein.html http://www.econtalk.org/archives/2007/02/richard_epstein.htm... Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm... Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.html http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...
EGreg 14y ago
I wrote this about software patents: http://news.ycombinator.com/item?id=2948724 http://news.ycombinator.com/item?id=2948724
EGreg 14y ago
Software patents may indeed be unnecessary largely because software already receives copyright protection.
sutro 14y ago
While it's encouraging that there's a growing awareness among enlightened individuals like Judge Posner that patents restrict innovation, the problem is due to get worse before it gets better, because the Patent Office itself believes that the key problem is that patents are not being issued quickly enough: http://www.sfgate.com/business/bottomline/article/Effort-to-speed-patents-new-Silicon-Valley-office-3679837.php http://www.sfgate.com/business/bottomline/article/Effort-to-... I'd like to see some organized demonstration and resistance from Silicon Valley to this new Silicon Valley Patent Office. Patents are a toxic waste polluting our tech economy, and the feds have decided to increase the flow of pollution.
- coopdog 14y ago
  I think they're half right, the turnaround time for a decision is too long, but the solution is surely to turn away the obvious patents on day 1 to get them out of the queue and discourage further frivolous applications. The cynic in me says that this is bureaucracy 101, where the bigger the problem, the more staff you need to solve it, the more staff you need to manage, the more important you become.. ergo the answer is to exacerbate the problem rather than solving it. I've also heard that they don't get paid for appeals, so rejecting a patent is more work than accepting it, which could also be shaping the landscape. Either way something is seriously messed up in the US patent office and it's effecting the world in a bad way.
user49598 14y ago
One big problem I have with software patents is that they rarely contain any actual implementation. The whole point of a patent is that society grants you a temporary monopoly and you give society the intricate details of your invention. Many patents these days get the best of both worlds. We give them that monopoly and they give not a thing back. I say if we're to have software patents, they need to all include working code. If the code doesn't produce your patentable idea, no patent.
josephlord 14y ago
I largely agree with Posner about what the law should be but I have a feeling that he might be overturned on appeal for not following what the law is. Valid patents are meant to grant the owner an exclusive right to manufacture or licence the technology described. Until this case I've not heard the theory that you can commercially use the patented technology without a license if the other side can't show damages. In my view Google should have been given a little time to work around the patent but to have been required to do so. Actually the only way the law is going to get changed is if it properly enforced and its ridiculousness is made obvious to the public.
aangjie 14y ago
Ok any TLDR versions? out of sync with what? what should it be synced to? Am generally not a fan of IP, but don't have time to read through the Original article.
Agathos 14y ago
Kind of funny that the Chicago Tribune turns to Reuters to report the opinions of a man who lives in Chicago.

339 points by sutro 14y ago

We don't need patents in any industries at all if you judge them based upon their original intent -- to further the public knowledge (the temporary monopoly was meant to be a reward for that, not the main reason for patents). It is difficult to overestimate our combined ability to reverse engineer virtually any type of product made these days and in that sense patents aren't very useful anymore relative to their original purpose.

StavrosK 14y ago
Wasn't their original intent to protect the inventor's R&D investment by ensuring that he would be the sole beneficiary of the invention for a time? Easily reverse-engineering products makes the initial purpose even more necessary.
- nas 14y ago
  Not as I understand it. The intent was to provide an alternative to "trade secrets". In exchange for disclosing how your great new invention works, you get a limited monopoly on it. Modern patents don't work this way. Seriously, who reads patents to learn who new inventions work? I'm sure there is someone who does but mostly they are just dense legal mumble-jumble. Also, it seems most of them are totally obvious that don't need a detailed explanation of the "invention".
  - mistercow 14y ago
    >Seriously, who reads patents to learn who new inventions work? I do sometimes, actually. But you're right that it's not a very understanding-conducive format. They're more concerned with making sure the claims are watertight than making sure the public can figure out what's going on in them.
    - gruseom 14y ago
      They're more concerned with making sure the claims are watertight As far as software patents go, if their claims are "watertight" it must be in some technical legal realm that is utterly removed from the field of invention. As software designs, the vast majority (that I've seen) are risible.
  - abecedarius 14y ago
    I once read large parts of http://www.google.com/patents/US4614319 http://www.google.com/patents/US4614319 out of curiosity. The way it's written to actually explain the ideas shows up how most patents aren't.
  - antidoh 14y ago
    My understanding is that it can be dangerous for a company significantly affected by IP for its employees to read any patents. If that doesn't fly in the face ...
    - georgemcbay 14y ago
      This is true. If you violate a patent while knowing about the patent you are violating you can be on the hook for triple (treble in lawyer-speak) damages compared to a violation where you didn't know of the patent previously. For this reason, a lot of companies I've worked for have had a blanket policy requesting that software developers never read patents, especially in areas the company is working in. Of course the fact that you can very easily violate many patents without having ever read them is just more evidence that the patent system isn't currently serving a useful purpose for anyone but patent trolls and lawyers.
- abecedarius 14y ago
  If you go back the right number of centuries, the original intent was for a revenue source for the Crown. http://en.wikipedia.org/wiki/History_of_patent_law#England http://en.wikipedia.org/wiki/History_of_patent_law#England
- jandrewrogers 14y ago
  The original intent of patents, long forgotten, was to limit the use of trade secrets. Trade secrets have the unfortunate property that the public state-of-the-art can be decades behind the private R&D. This was endemic during the times of guilds. The reversion to a use of trade secrets, at least in software (because patents are largely unenforceable), is recreating some of the issues that patents were intended to avoid. In my own area of computer science, the private state-of-the-art is at least half a decade ahead of academia. This was the situation that patents were intended to avoid.
  - ZeroGravitas 14y ago
    If academia is only 5 years behind then it doesn't seem a good deal for the public to give 20 years monopoly on ideas, particularly so if those ideas build on top of each other and lead to patent gridlock. (Of course in reality, academia is part of this patent gridlock, but the general point remains)
    - jandrewrogers 14y ago
      The point is more that academic research is reinventing the wheel rather than doing genuinely productive research. Instead of researchers researching stuff that needs to be researched, a significant number of them are researching things that other researchers have known the answer to for years. It is not an effective use of human capital.
- brlewis 14y ago
  The US Constitution authorizes congress "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" In the jurisdiction relevant to this article (i.e. United States) the original intent was to promote progress.
josteink 14y ago
We don't need patents in any industries at all if you judge them based upon their original intent -- to further the public knowledge Good to see this one mentioned. Most people seem to forget that the original intent for all "IP-laws" originally was to broaden the public knowledge and to ultimately benefit the public. That private entities was incentivized with limited monopolies which they could use to profit was merely a means, not the goal. These days everyone takes for granted that the means is the goal and the original goal is long forgotten. If the original intent hadn't been forgotten as well as it has at this point, I doubt we would have seen the massive expanse of "IP-laws" which we have seen these last decades. Heck, back in the days there was no such thing as "IP". People were rational enough to realize there is no such thing as "intellectual property" which you can possess in a meaningful way. Copyright law, patent-law and all these "IP-laws" should be reverted back to their original intent. Unfortunately that is not going to happen. The US has way too much invested in so called "intellectual property" to go back on this now. Look at the US these days. What brings in the money? Traditional industry? All gone. Manufacturing? All outsourced. In fact all the US has left of value is "intellectual property". Think Microsoft, Apple, Google and Hollywood. Now imagine the current US without the likes of those, or a world where their "property" could be had by anyone at no cost. Where would the US be then? For all the bad things IP laws brings about (and don't get me wrong, I do think they are bad) there is a reason the US (and mostly the US) is pushing so hard on copyright-law and patent-law and trying to divert us from their original intent by instilling the idea of "intellectual property" as a legitimate one in the public mind. Right now, this so called "intellectual property" is the only thing the US have left.

gringomorcego 14y ago

Patents and IP protection are a sovereign prisoner's dilemma. Good luck with that, USA.

dstorrs 14y ago
You do realize that Tit For Tat is the dominant strategy of PD, right? [1] [1] Ok, not strictly true. Other strategies can dominate under certain conditions (finite and pre-known number of iterations, possibility of signal error, etc) but I don't feel that those conditions apply in this case.
- gringomorcego 14y ago
  This prisoner's dilemma has one round with different rewards. Also, don't correct people with 'you do realize' because it makes you seem like an asshole.

kenjackson 14y ago

Posner's right. It seems that there needs to be some new notion of what constitutes patentability. Drugs are an interesting case as they have these factors going for it: 1) Expensive to bring IP to market. Lots of testing and clinical trials for drugs. For SW it is pretty cheap now. 2) Easy and cheap to copy. Generic versions can be reverse-engineered quickly. Probably just as easy to copy software, but I still feel like this is probably a useful pillar. 3) The IP by itself constitutes the majority of the value of the product. In medicine there isn't typically tons of other IP around that come together to form the product. In SW there is rarely a single piece of IP that is more than a small fraction of the value of the product. 4) The IP has longevity as a standalone product. Viagra can be sold for decades. Aspirin still probably does hundreds of millions in revenue. There is little SW IP that, by itself, has longevity. The nature of SW is to continuously improve it. 5) Time to market isn't a huge advantage. Since most medicine is just sold as effectively a commodity, being 6m ahead of your competition usually just means you have 6 extra months of revenue. Whereas in SW it also means that gives you 6 months to build on your current IP. In medicine you don't typically do Viagra 2.0, with a boatload of new IP that makes the original obsolete (and hence any competitors shipping the old version scrambling).

exDM69 14y ago
The society needs to find a new way to give incentives for drug development. Patents may seem to solve the problem from the drug company's point of view, but it keeps the price of drugs prohibitively high for the less fortunate of us. So there are billions of people in the world who are left without medication or use wrong medication because of intellectual property licensing and pricing issues. This leads to unnecessary suffering and other bad things like antibiotics overuse (particularly in India) and drug-resistant strains of deceases.
Jach 14y ago
Drugs are typically presented as the crown jewel for patents, but an examination of the modern drug industry destroys that notion for me. Some decent arguments can be found here: http://www.dklevine.com/papers/imbookfinal09.pdf http://www.dklevine.com/papers/imbookfinal09.pdf

lwat 14y ago

I really do think we'll be better off on average scrapping patents in ALL industries. Sure there's some positives in patents but the negatives far outweigh them in my opinion.

colinshark 14y ago
There is one industry that is similar to software, but it has absolutely no intellectual property protection besides trademarks. It's the fashion industry. It moves at a breakneck pace. Nobody claims the fashion world is dying or moving too slowly because of lack of legal monopoly protection. The competition is fierce, and consumers are rewarded with many great options. I'm sure other industries would do fine without patents.
- adavies42 14y ago
  Home sewing is killing fashion! http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewing.svg http://upload.wikimedia.org/wikipedia/commons/4/4f/Homesewin...

Fando 14y ago

Amen to this man!

TwoBit 14y ago

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

fmitchell0 14y ago
Federal judges have lifetime appointments. http://en.wikipedia.org/wiki/United_States_federal_judge http://en.wikipedia.org/wiki/United_States_federal_judge
gersh 14y ago
He has a lifetime appointment as a judge. Only 9 judges have ever been removed in the history of the country. It isn't likely that he will be removed. They can just appeal his decisions.
- TwoBit 14y ago
  Sure, but they can still steer cases away from him, no?
  - gersh 14y ago
    His appellate court has jurisdiction over the federal courts in Wisconsin, Illinois, and Indiana. The chief district judge assigns cases. The chief judge designation is based upon seniority, and all of the district judges have lifetime appointment as well.

littlemerman 14y ago

Posner is awesome.

DigitalSea 14y ago

most industries? No. Some industries? Yes. I am a firm believer that patents do not belong in software at all. They're used to litigate not innovate and how often has a developer truly come up with a software technique that isn't in some form prior art? Most of the things that Oracle was arguing in the Google case were in-fact techniques that have been used in mathematics long before programming ever became a viable choice as a career (the rangeCheck point in the case is a prime example). I think patents should only be for actual products, something you can hold in your hand. People like Apple trying to patent things like slide to unlock are idiots, you shouldn't be able to patent a movement. As it has been shown many times, software patent litigation is a joke. Patent something real or GTFO. Look at people like James Dyson the dude has tonnes of patents all mostly on real products and techniques for doing unique things in the case of Dyson suing for competitors stealing his patented methods of cyclonic vacuum cleaners that's a real patent lawsuit right there, not arguing over whether or not a swipe is a zero length touch.

dk 14y ago
Actually Oracle only made two patent infringement claims against Google -- rangeCheck wasn't one of them -- and Google didn't argue prior art against either of them. ETA: They argued non-infringement.
- DigitalSea 14y ago
  That's fair enough. I don't know a whole lot about these things but I guess my intentions as to what I was trying to say were pretty clear. Thanks for clarifying that for me though.
- felipeko 14y ago
  Just for correctness, Oracle made 7 patent infringement claims against Google, and was left with only 2 by the time of the trial because of the reexaminations. And Google didn't argue invalidity because they agreed (to streamline the trial).

antidoh 14y ago

Patents are for inventions, but software patents are used to insulate whole products from competition.

idspispopd 14y ago

I don't see patents, or patent defence as a problem. The problem is that patents are being granted for lowest-bar "innovations", which are leading to these cases by companies that are merely using it as yet another competition tactic. In tech we're seeing patent cases are over trivial, often minor, features which others can accidentally infringe upon without noticing. Pharma is a different beast, it's much more difficult to have a low-bar pharmaceutical, usually by the time the work is done the medication far exceeds the threshold of patentability. (Patent exploitation does still happen, as others have pointed out with insincere drug enhancements.) It's not about regulating specific industries(which would be exploited), but rather about raising the bar on what is indeed an original invention. The blame for this mess lay on the USPTO. The patent system is being run like a commercial entity. A granted patent will attract over $5,000 in fees to USPTO, a rejected patent will only garner $125, with much of the granted fees attributed to curiously undefined 'maintenance' cost. http://www.uspto.gov/inventors/patents.jsp#heading-6 http://www.uspto.gov/inventors/patents.jsp#heading-6

monochromatic 14y ago

Regardless of where one stands on questions of patent policy, it is ridiculous to praise a trial judge for ignoring binding precedent. (Yes, I know Posner is an appellate judge. He was sitting by designation as a trial judge in Apple v. Motorola.)

brlewis 14y ago
Are you saying he ignored binding precedent in his court opinion, or in what he said to the press? I'm inclined to accept grellas' assessment that Posner's court opinion was on solid ground: http://news.ycombinator.com/item?id=4086642 http://news.ycombinator.com/item?id=4086642

kenster07 14y ago

A patent holder should -never- be able to ban an entity from using an idea in one of their products, if our society's priority to maximize quality of life ('if' because it is clearly not a priority for certain entities). The patent system needs to balance the need for an incentive to invent, with the goal of maximizing quality of life. The current state of the American patent system stagnates society on multiple levels: 1) Patents, in too many cases, are a prohibitive barrier to entry for entrepreneurs. We have a system in which entrepreneurs know that if an adequately wealthy corporation were to knowingly file frivolous patent lawsuit, the cost, time, and energy to defend such a lawsuit could threaten the life of a fledgling business. Such a system can only have a chilling effect on entrepreneurship and economic growth. Trying to improve the world should -not- feel like walking on a minefield, and until that is fixed, our economy is not receiving the full benefit of its entrepreneurs. 2) Another inventor may be able to use a patented idea as a component for a broader, more useful (patentable) idea. A patent holder should not be able to prevent the development of innovations based upon their own. 3) In many cases, the inventor is not the best producer of his own invention. Society, as a whole, is best off when the best inventions can be produced by the most capable producers, and a patent holder should never be able to prevent this optimal economic arrangement. American society generally values creativity far more than productivity, as reflected not only in its patent system, but in its popular culture, heroes of industry, etc. But in terms the health and sustainability of society, and economic output, productivity is at least as important. If Americans don't collectively acknowledge this, broader economic, and ultimately geopolitical, consequences will continue. As a minimal solution to reverse these trends, I would suggest that patent holders be stripped of the ability to prevent others from being able to use their ideas in a product, but should be able to retain the ability to charge reasonable royalties. Thus, our society may be able to approach a healthier balance between its need for innovation and production.

MBCook 14y ago
Compulsory licensing may help in some areas, but the way things are going in the computer industry I don't think it would be enough. Even if you only charge $0.05 per unit, that can still be a big problem. How many ridiculous software patents do you think something like a common smartphone must infringe on. If you infringe on 100 patents ("ability to tap on icon", "drag gesture to move things", "method for turning down volume", etc.) that's a $5.00 cost per phone. A low end phone may only cost $200 unsubsidized. If you only make $30 per phone, that's over 15% of your profits. The core issue still exists. None of this would be as much of a problem if software patents were required to be much better defined and extraordinary, were granted faster, could be invalidated with prior art or independent invention, didn't last as long, and there was some sort of damage limit. Right now, if the iPhone infringes on some patent that objectively covers 0.02% of the software on the phone, the patent holder can still go after tons of money. The damages aren't tied to the utility. If Apple won the slide to unlock patent, and (due to the scope) could only win $0.001 per Android device sold... would they have still done it? What if (again, due to scope) they couldn't get an injunction on something so small?

WalterBright 14y ago

As far as I know, before 1989 or so there were hardly any patents on software, and that didn't inhibit innovation or the breakneck pace of software development in the slightest.

haberman 14y ago

As much as I love seeing some straight talk on the patent issue, it seems dangerous for a judge to have the appearance of injecting his opinions about what laws ought to be into the judicial process. He specifically requested to be put on a high-stakes patent case, then immediately threw the case out and started making public and vocal arguments against patents in tech? I'd love to see him be our champion for sanity for this system (since our squabbling legislature can barely keep us from defaulting on our debt, let alone tackle patent reform), but this just seems to draw a huge target on his back for complaints of "judicial activism."

jlarocco 14y ago
Yeah, I was thinking the same thing. It's convenient that I agree with his opinion, but I'm a little uncomfortable with the way he's going about things.
user49598 14y ago
Laws aren't god given. They are to be interpreted or even ignored by anyone who finds themselves in the legal system. Thats why jury nullification exists, and thats why judges have jobs. At the end of the day it's just humans making decisions about other humans and if your firm belief is not in line with the law you have the opportunity to express that.
- josephlord 14y ago
  Jury nullification Yes (its a form of direct democracy). Judges making up the law No (its an undemocratic attack on the rule of law). Interpretation of ambiguities is one thing but just ignoring parts is not OK. It would leave everyone with no rules to follow just different judges with different views to persuade in each case. If there is a real disagreement between law and what the judge thinks is right they should rule in favour of the law (but grant sanctions etc. as close to just as possible). He/she can then publicly complain about the law or run for congress to change it. Please note that I am in favour of what the Judge has said but think that if his ruling stands it is a big change in the law and it is the wrong way to do that.

shmulkey18 14y ago

Econtalk has some nice podcasts on IP issues, including patents: Epstein on Property Rights and Drug Patents http://www.econtalk.org/archives/2007/02/richard_epstein.html http://www.econtalk.org/archives/2007/02/richard_epstein.htm... Boldrin on Intellectual Property http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm... Blakley on Fashion and Intellectual Property http://www.econtalk.org/archives/2010/06/blakely_on_fash.html http://www.econtalk.org/archives/2010/06/blakely_on_fash.htm...

EGreg 14y ago

I wrote this about software patents: http://news.ycombinator.com/item?id=2948724 http://news.ycombinator.com/item?id=2948724

EGreg 14y ago

Software patents may indeed be unnecessary largely because software already receives copyright protection.

sutro 14y ago

While it's encouraging that there's a growing awareness among enlightened individuals like Judge Posner that patents restrict innovation, the problem is due to get worse before it gets better, because the Patent Office itself believes that the key problem is that patents are not being issued quickly enough: http://www.sfgate.com/business/bottomline/article/Effort-to-speed-patents-new-Silicon-Valley-office-3679837.php http://www.sfgate.com/business/bottomline/article/Effort-to-... I'd like to see some organized demonstration and resistance from Silicon Valley to this new Silicon Valley Patent Office. Patents are a toxic waste polluting our tech economy, and the feds have decided to increase the flow of pollution.

coopdog 14y ago
I think they're half right, the turnaround time for a decision is too long, but the solution is surely to turn away the obvious patents on day 1 to get them out of the queue and discourage further frivolous applications. The cynic in me says that this is bureaucracy 101, where the bigger the problem, the more staff you need to solve it, the more staff you need to manage, the more important you become.. ergo the answer is to exacerbate the problem rather than solving it. I've also heard that they don't get paid for appeals, so rejecting a patent is more work than accepting it, which could also be shaping the landscape. Either way something is seriously messed up in the US patent office and it's effecting the world in a bad way.

user49598 14y ago

One big problem I have with software patents is that they rarely contain any actual implementation. The whole point of a patent is that society grants you a temporary monopoly and you give society the intricate details of your invention. Many patents these days get the best of both worlds. We give them that monopoly and they give not a thing back. I say if we're to have software patents, they need to all include working code. If the code doesn't produce your patentable idea, no patent.

josephlord 14y ago

I largely agree with Posner about what the law should be but I have a feeling that he might be overturned on appeal for not following what the law is. Valid patents are meant to grant the owner an exclusive right to manufacture or licence the technology described. Until this case I've not heard the theory that you can commercially use the patented technology without a license if the other side can't show damages. In my view Google should have been given a little time to work around the patent but to have been required to do so. Actually the only way the law is going to get changed is if it properly enforced and its ridiculousness is made obvious to the public.

aangjie 14y ago

Ok any TLDR versions? out of sync with what? what should it be synced to? Am generally not a fan of IP, but don't have time to read through the Original article.

Agathos 14y ago

Kind of funny that the Chicago Tribune turns to Reuters to report the opinions of a man who lives in Chicago.