Judge Posner Calls for Big Patent Changes

Many of our readers are likely familiar with federal Judge Richard Posner. He recently dismissed the high-profile intellectual property litigation between Apple and Motorola, after determining that neither side could prove damages.

In a recent article in The Atlantic, Judge Posner discussed what he believes are significant weaknesses in the structure and administration of our current patent laws. As a federal appeals court judge who often volunteers to oversee IP litigation, Posner definitely has a front seat to our IP system.

In the article, Posner cites common complaints such as understaffing of the USPTO and the costs associated with extensive patent searches. However, according to Posner, some of the biggest problems include the proliferation of patents and patent litigation.

As Posner argues, “A patent blocks competition within the patent’s scope and so if a firm has enough patents it may be able to monopolize its market. This prospect gives rise to two wasteful phenomena: defensive patenting and patent trolls.”

Posner also argues that the availability of jury trials also impedes the resolution of patent disputes. He argues, “Judges have difficulty understanding modern technology and jurors have even greater difficulty, yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats — even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing.”

To alleviate some of the problem plaguing the current patent system, Posner offers several recommendations:

  • Reducing the patent term for inventors in certain industries;
  • Instituting a system of compulsory licensing of patented inventions;
  • Eliminating court trials including jury trials in patent cases by expanding the authority and procedures of the Patent and Trademark Office to make it the trier of patent cases, subject to limited appellate review in the courts;
  • Forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent; and
  • Providing special training for federal judges who volunteer to preside over patent litigation.

While many of Posner’s observations are open for debate, he shines a light on challenges for our current system.


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