Judge Posner Offers Three Ideas for Fixing Our Broken Patent System

Calling the patent system broken might ring hollow in light of the recent overhaul heralded by the America Invents Act. But, as the Seventh Circuit's Richard A. Posner pointed out in Slate, the system can't be fixed without addressing the true problem - patents themselves. Posner stated that "as patents have evolved in the U.S. legal system, they are not an ideal solution to the problem; instead they are part of the problem."

Posner notes that patents are being granted "promiscuously" and that the legal system (specifically jurors) tend to favor patent holders. It's the latter observation that's given rise to patent trolls, which have the ability to judicially exploit patents granted for minor, valueless inventions.

Posner also points out that 20 years of patent protection is, in many instances, unnecessary for encouraging invention. He notes that invention is often cheap and that being first to market offers a competitive/branding advantage. Another thing he notes is that many products have a short shelf life, which means copying and infringement are at the mercy of a swiftly moving market.

Despite its problems, the patent system is fixable.  Complex problems don't always require complex solutions, and Posner offers some clear and simple fixes. They include:

1. Varying the length of patent protection by industry, ranging from no protection to 20 years of protection, or more, for pharmaceutical drugs (the pharmaceutical industry is characterized by a high ratio of cost of invention to cost of copying);
2. Making patents contingent on the timely production of an invention (to inoculate against patent trolls); and
3. Recruiting judges with an interest in technology and training them in the conduct of patent cases. 

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