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Richard Falk
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People come up with ideas all the time, but do not put them into practice. There is a big difference between trying to patent the concept or idea of a light bulb where one passes electricity to heat an element vs. patenting the specific material that is used, the method of attachment for the filament, and the inert gases used in the bulb, all of which took years of costly experimentation with thousands of filament materials to discover to produce a practical light bulb (Edison's coiled carbon filament using bamboo) and its later improvements by others (using tungsten and inert gasses). Patents should exist to encourage innovation that requires investment rather than simply creative thinking. The distinction is in Thomas Edison's quote: "Genius is one percent inspiration, ninety-nine percent perspiration." There is history about this issue such as the George Seldon patent for Henry Ford. That case required an automobile to be built according to the patent and the resulting car was a failure and the patent overturned: That case was used to justify forcing the Wright Brothers to license their patents (and related ones from Curtiss) at reasonable rates: So while the points in this Posner blog post are valid with regard to the purpose of patents in encouraging innovation that incurs up-front costs, it is incorrect to assume that only the pharmaceutical industry has such significant costs. One may reasonably argue that many (though not all) software and business method patents do not incur such costs. The USPTO was right in being very restrictive in issuing software patents and that the CCPA was wrong in reversing those rulings which later on the subsequent CAFC made much worse in State Street Bank v. Signature Financial Group. Then came Bilski v. Kappos approving business methods. What has been lost in the patent system is the concept of invention. The Constitution clearly states Authors with their Writings (i.e.copyright) and Inventors with their Discoveries (i.e. patents). Section 101 of title 35 USC also clearly states "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent…" Implicit is some degree of effort required. Otherwise we'd be referring to "ideas" not "inventions". There are really two distinct broad classes of problems with a lot of current patent litigation. There is the issue of weak patents where I would include the issue of whether or not they are put into practice, but there is also the issue of weak cases. That's an entire topic not related to this blog, but critically important to examine since patent abuse is done by multiple actors, not just PAEs -- corporations not acting in good faith in licensing inventor's inventions or in suing competitors with weak cases are also a problem. At the intersection of these issues are attorneys, but courts do not generally look at more than one case at a time so the cumulative repetitive harm that is done is not measured nor punished, but I digress...
Toggle Commented Jul 22, 2013 on Patent Trolls—Posner at The Becker-Posner Blog
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Jul 22, 2013