Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Patent Failure

Interesting book forthcoming - Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk by James Bessen & Michael J. Meurer.

First chapter can be read here.

I'm still not convinced by their obvious desire to link the concept of patents with real property, but the authors seem honest and upfront about examining the problems with the argument. Plus, some of their proposed reforms of the patent seem spot on - especially the notion of doing away with the judicial monopoly of the D.C.-based Federal Circuit that allows it (and only it) to interpret U.S. patent laws. This is a huge mistake that doesn't often get a lot of attention.


Justin, can you give your reasons why you think the Fed.Circuit's sole patent jurisdiction is a mistake?
A while back I was listening to the Clark Howard radio show. The radio show is geared to consumers who have concerns, such as credit, and he provides advice. In this particular case a woman called up and said that she just had a table design patented and wondered what the best approach would be to "market" this table to furniture manufactures. Needless to say I was stunned at how a table (as common household furniture) could possibly be patented.

This speaks to a couple of patent issues. The most obvious being the laxity of the PTO in approving patents. Next, the existence of companies that are preying on the naiveté of people who think that patents are the "road to riches". As I listened, she was clearly clueless and I think that Mr. Howard was aware of this too. He attempted to provide her with an "uplifting" response.

Though this is not a business model or a software patent, it is still one more "little" incident that points to our patent system being highly flawed and in need of correction.

In this particular case a woman called up and said that she just had a table design patented

Key phrase - design patent. A design patent is a completely different animal than a utility patent, and is very narrow in scope - so much so that very minor variations are all that is necessary to avoid infringement.

You can get design patents for all kinds of common things - tables, coffee cups, whatever. But such design patents would only cover those ornamental aspects of the patented subject matter. Furthermore, a design patent can be invalidated if the design itself actually has practical utility.

Needless to say I was stunned at how a table (as common household furniture) could possibly be patented.

Be stunned no more.

Thirteen28 is right on the design vs. utility patent distinction; Steve R's reaction is understandable though. Consider the rent-seeking aspect of the patent regime, and that design patents are just another way for rent seekers to belly up to the trough. The PTO is just a gateway-enabler for patent seekers on the one hand, and their political guardians on the other.

I would push for abolition of the patent cookie monster though, rather than its reform. Then we would be stunned no more.

Thanks for pointing out this distinction. Live and learn.
Stephen K. - Having a single Appellate Circuit have a jurisdictional monopoly over ANY area of law is a huge mistake. The reason being is that it only allows a small cadre of jurists to interpret the law without the give and take (or, if you will, 'competition') from jurists in other Circuits. Therefore, if the judges in that Circuit start interpreting the law in a manner that is mistaken (which is clearly the case with patent law), that mistake is then imposed on the entire country unless and until the Supreme Court intervenes. The Supreme Court has limited resources to review bad court decisions in terms of time and personnel, so it can't correct every bad decision out there.

This dynamic would be a lot likely if each Circuit had input into the proper meaning of patent law. The bad decisions of the Federal Circuit would only be confined to that Circuits borders. Meanwhile, other judges outside the area could offer different perspectives in terms of "uniqueness", "patentability" and other patent concepts that the Federal Circuit has consistently distorted in order to benefit large corporations and patent trolls at the expense of true innovation.

Right now, the Supreme Court is the only institution with the ability to tell them that they are wrong. If you had other judges from Circuits 1 through 11 to weigh in on these issues, and tell them things such as that maybe patents shouldn't apply so broadly to software applications, and maybe incidental changes to a product shouldn't be deserving of a new patent that manages to lock up the underlying invention past the date that the original patent would otherwise expire on, or maybe so-called 'experts' aren't needed to determine if an invention is really new or not. Maybe the Federal Circuit has gotten these issues wrong due to its isolation without outside input from other legal perspectives. Maybe its just old fashion corruption that happens when institutions are given monopolies on power. In either case, 'competition' in legal circles is just as healthy as in other spheres of life. Would you think that it would be healthy for the nation if the 9th Circuit were given exclusive jurisdiction over interpreting our civil rights laws without input from other areas of the country? If not, then why is it healthy for the Federal Circuit to have exclusive jurisdiction over patent matters?

The Federal Circuit has completely screwed the pooch on patent law. The Supreme Court is finally starting to convey this message with the amount of patent cases it is agreeing to take and reversals that it is issuing.

Differences among Circuits would help better clue the Supreme Court in to where the problems in patent law lie, and when they should step in to resolve the problem.

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