Richard Posner on software patents

Richard Posner is an influential US judge. He became prominent in the patent debate in 2012 when he dismissed a law suit between Apple and Google.

Apple v. Google in 2012

Posner is an appeals court judge but decided to come down to a district court to hear a patent suit which Apple filed against Google's Motorola Mobility division, along with Google's countersuit. The trial was due to start on Monday, 11 June, but Posner released a statement on the Friday beforehand saying that although there may be infringement, no damage had been proven and he had decided to dismiss the case "with prejudice" (thus no further case possible for the same infringement).

On software and patents

Posner published a few articles about patents soon after the Apple v. Google case. He doesn't discuss abolishing software patents, but comments on software look like a direct copy of what anti-software-patent campaigns have been saying for years.

About software:

The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. Software innovation tends to be piecemeal — not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement — and also for infringing, and then challenging the validity of the patent when the patentee sues you.

Further impediments to effective patent policy in the software industry include a shortage of patent examiners with the requisite technical skills, the limited technical competence of judges and jurors, the difficulty of assessing damages for infringement of a component rather than a complete product, and the instability of the software industry because of its technological dynamism, which creates incentives both to patent and to infringe patents and thus increases legal costs.

The pharmaceutical and software industries are the extremes so far as the social benefits and costs of patent protection are concerned, and there are many industries in between. My general sense, however, bolstered by an extensive academic literature, is that patent protection is on the whole excessive and that major reforms are necessary.

In a second article, he doesn't mention software explicitly but he discusses a category of work that seems to fit into his previous description of the software field:

The reason is that the need for patent protection in order to provide incentives for innovation varies greatly across industries.

(...) pharmaceuticals are the poster child for the patent system. But few industries resemble pharmaceuticals in the respects that I've just described. In most, the cost of invention is low; or just being first confers a durable competitive advantage because consumers associate the inventing company's brand name with the product itself; or just being first gives the first company in the market a head start in reducing its costs as it becomes more experienced at producing and marketing the product; or the product will be superseded soon anyway, so there's no point to a patent monopoly that will last 20 years; or some or all of these factors are present. Most industries could get along fine without patent protection.

I would lay particular stress on the cost of invention. In an industry in which teams of engineers are employed on a salaried basis to conduct research on and development of product improvements, the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant.

(...) The cost of patenting and the cost of resolving disputes that may arise when competitors have patents are a social waste.

Related pages on ESP Wiki

• USA patent courts and appeals

External links

• The solution to Posner’s patent problem, 19 July 2012, ESP news
• Judge Posner: U.S. patent system out of sync, 5 July 2012, Chicago Tribune
• Judge Posner Rips Apart Apple's Patent Litigation Strategy: Being 'Really Annoyed' Is No Reason To Sue, 25 June 2012, Techdirt
• Famous judge spikes Apple-Google case, calls patent system “dysfunctional”, 8 June 2012, Gigaom
• Judge who shelved Apple trial says patent system out of sync, 5 June 2012, Reuters

Articles by Posner

• Do patent and copyright law restrict competition and creativity excessively?, 30 Sep 2012
• Why There Are Too Many Patents in America, 12 July 2012