10/18/2012 01:53:00 PM EST
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
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:
- 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);
- Making patents contingent on the timely
production of an invention (to inoculate against patent trolls); and
- Recruiting judges with an
interest in technology and training them in the conduct of patent
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