This piece amounts to a red alert signal from a distinguished judge to Congress that it needs to fix some pernicious elements of the U.S. patent system and that it needs to do so now. The tone is judicious but the message is essentially alarmist: the system is seriously out of whack and Congress needs to get on with fixing it.
Judge Posner admits he is no expert on what the fixes should be and his tentative suggestions for fixing the system are, in my view, decidedly mixed on their merits (e.g., specialized adjudications before the USPTO - remember when it was suggested that a specialized appeals court would improve the patent system and the result was a court that has been so maximalist in its approach to patents that it has in itself become a significant part of the problem).
So where to begin?
Legally, it has to go back to fundamentals and, for me, this has to go back to the scope of patentable subject matter and whether this should be defined to include software at all.
The Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Note that, in defining this as one of the enumerated powers of the federal legislative branch, the Constitution does not mandate that the legislature provide for patent protection of any sort. It merely permits the exercise of such a power within constitutionally prescribed limits. Thus, any legitimate exercise of patent authority in the U.S. must come from Congress and must respect the constitutional bounds that any grant of patents be for "limited times" and be done in such a way as "to promote the progress of science and useful arts." Legally, then, any patent system in the U.S., if adopted at all, must be authorized and defined by Congress with a view to promoting the progress of science and, implicitly, must employ "limited times" consistent with what it takes to promote scientific progress.
The first issue, then, is whether patents are needed at all to promote the progress of science. In the U.S., in spite of philosophical arguments to the contrary by Jefferson (http://news.ycombinator.com/item?id=1171754), this has never been seriously in dispute. The industrial revolution was already well in progress in 1789, when the Constitution was adopted, and the federal authority, though generally regarded with great wariness at the time, was seen as vital to protect the rights of inventors and to reward them with limited monopoly grants in order to encourage the progress of science. In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "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 therefor, subject to the conditions and requirements of this title."
Thus, patents in the U.S. can be granted for any original invention that fits within the definition of patentable subject matter and that also meets the other conditions of the patent act (i.e., that is useful and non-obvious). Note, though, that the 1952 definition of patentable subject matter significantly expanded the scope of such subject matter in the name of bringing the patent laws up to date with developments in then-modern technology, all in the name of promoting the progress of science. It did so by defining patentable subject matter to include any "new and useful process" as well as any "new and useful improvement" of any original invention. Over time, "process" has come to embrace business methods and also software. And the protection of "useful improvements" made clear that new uses of existing machines or processes could be patented notwithstanding older Supreme Court decisions such as Roberts v. Ryer, 91 U.S. 150, 157 (1875) ("it is no new invention to use an old machine for a new purpose").
To promote the progress of science, then, Congress in 1952 allowed patents to be granted for any inventive process and for any inventive new use for any such process. In my view, this generally made sense for what was essentially the continued playing out of the same sort of industrial revolution that animated the original forms of patent protection granted in 1790. Looking at that language at that time, one could readily make the case that patentable processes and improvements thereon could and did promote the progress of science. Discrete inventions tended to be sharply differentiated and tended to involve significant development effort in time and resources. An inventor could keep a process secret and not patent it but the grant of a limited monopoly gave a decided inducement to disclose it to the world and, hence, to expand the broad pool of scientific know-how available to society.
Then came the digital revolution and, with software, a new or improved process can amount to an almost trivial variation on prior art amidst a seemingly endless stream of improvements developed in ever-rapid succession and with little or no capital investment beyond what developers would be motivated to do for reasons entirely independent of gaining monopoly protection for the fruits of their efforts. Moreover, there is little that is closed about such innovations: a wide knowledge base is in place, known to an international developer community that is basically scratching its collective head asking why it should be restricted legally from using techniques and processes that represent common knowledge in the field.
The main question, then, concerning software patents, is whether the existing framework makes sense as one that promotes the "progress of science" insofar as it grants patent protection to process inventions in this area. Congress needs to seriously ask itself that question. A second question, also tied to constitutional authority and assuming that it is legitimate to grant some form of patent for such inventions, is whether a 20-year period of exclusivity makes sense in an area where innovation occurs at blazing speeds and with not too much capital investment tied specifically to any given discrete invention. Is that necessary to promote the progress of science? That too is a question that Congress needs to consider.
Thus: (1) there is nothing magical about the current definition of patentable subject matter and Congress can adapt this to suit the needs of the time in promoting the progress of science, (2) process patents are in themselves a fairly recent phenomenon (at least in any large numbers) and it is no radical change to curtail them in areas where they make little or no sense in light of the constitutional purpose for why patents even exist in the first place, and (3) legitimate patent reform needs to go far beyond procedural fixes around the edges of the system and needs to focus on the realities of modern technology and whether the patent laws further or impede the progress of science as applied.
The policy debate can and will go all over the board on this but, if it is framed in light of the constitutional foundation for having patents in the first place, it can be shaped in a way that puts the focus on the fundamentals of what needs to be fixed as opposed to lesser issues that do not get to the heart of the problem. The main problem today is the blizzard of vague and often useless patents in the area of software. These are effectively choking all sorts of innovation and are benefiting mainly lawyers, trolls, and others who do not further technological development by what they do. It is a mistake, in my view, then, to swing too broadly in trying to fix things (as by advocating abolition of all patents) or to be so timid about the issues that reform is marginal at best and ineffective in dealing with the current crisis of an over-abundance of essentially worthless patents. Congress embraces the patent system as a whole and shows no hostility to its fundamentals. Reform must be shaped in light of those fundamentals but it must, at the same time, be meaningful to eliminate the main garbage from the current flawed system. Judge Posner has pointed the way generally and proponents of reform ought to follow his lead, with the focus being (in my view) on software.
It is a mistake, in my view, then, to swing too broadly in trying to fix things
I feel that a natural line to draw is computability, which rayiner has argued against in another comment. He cites an old communications patent[1] as well as the ARM architecture patents as examples with protecting. I am not familiar with either, but I feel there needs to be a strong metric for patentability. To that end, I propose that we create a collection of patents that those of us whose innovations in software are supposed to be encouraged, feel are worth protecting.
Thank you for the absolutely fantastic insight. I completely agree with everything that you've written, and especially with your sentiments concerning rash decisions in reforming patent law. Patent law is an enormously complex system that's inextricably linked with the conflicting interests of many stakeholders. Moreover, getting it wrong (by constricting the scope of patentable subject matter, limiting the remedies available, etc.) will cause the very conduct that the framers sought to avoid: overuse of trade secrets to safeguard inventions. Effectively, an exclusive right to exclude others from practicing an invention is the price the public pays to help the public repository of knowledge (e.g., scientific, literary, artistic) stay abreast of the private repository.
I have a problem with any suggested systemic improvement where the available protection depends on either the cost of the inventive process or its duration. The industry averages sound good in theory, but the USPTO is not equipped to investigate the truthfulness of these claims, which themselves are extraordinarily susceptible to accounting tricks and the like. I don't believe the solution stems from increased regulation. Instead, I've been considering an alternative approach that I haven't heard of before: patents should be inalienable with their rights vesting exclusively in the inventors (jointly and with right of survivorship) for the statutory period. It follows that the state would have a vested remainder in those rights and that no inventor would be able to transfer their right to another.
This idea came after reading about the philosophical and theological concept of inalienable possessions. Paul Kockelman's[1] first theoretical point on the topic concerns ontological classification: ``the gain and loss of inalienable possessions is related to the expansion and contraction of personhood.'' In other words, an individual's accumulation of inalienable possessions correlates with their personhood. Kockelman's second theoretical point asserts that inalienable possessions ontologically individuate, viz. they are uniquely identifiable with the particular individual for his life. Kockelman's final theoretical point is intimately related to classification and individuation: ``inalienable possessions historically and biographically trace.'' It follows that the inalienable possessions held by a group of people can act as a lens through which an observer may view that group's history.
Kockelman's formulation serves as a brilliant metaphor in the domain of Art. 1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the ``transcendent treasures'' that we must ``guard[] against all the exigencies that might force their loss.''[2] Overly litigious plaintiffs who amass war chests of patents constitute one such ``exigency.'' Another ``exigency'' occurs when universities strip patent rights from uncompensated students who took that one giant inventive leap. Universities justify their actions by asserting that the transfer was consideration for facility usage---an ``exigency'' that arguably constricts the affected students' personhood.
Many people question how an idea is patentable subject matter: the answer is that it's not. An invention isn't any idea: it's a process, machine, manufacture, composition of matter, or any new and useful improvement on any of them. During the inventive process, an inventor must maintain constant ``intellectual domination'' over his work, and but for a highly particular ordered set of neurophysiological reactions occurring in the prefrontal cortex (``the fugitive fermentation of an individual brain''), the idea would not have occurred at the instant it did. If the idea contemplates a novel and nonobvious invention, then it advances the humanities or sciences by that fact itself. The idea is a psychofact capable of acting as a vehicle ``for bringing past times into present'' so that the history of the inventive process elides into the inventor's identity. It logically follows that a chronology of all inventors in a society produces historically significant insight into the progress of the Arts and Sciences. By contrast, a chronology of patent assignees produces its own historically significant insight: the alarming increase in exigencies threatening the dissemination of these ``transcendental treasures:'' ideas. Accordingly, inventions are properly entitled to the appellation of inalienable possessions.
Applying Kockelman's theoretical points creates what, in my view, is a sensible reformation of intellectual property law. We can distinguish patents from other property interests by noting that patentability requires an idea to meet a series of standards that elevate it to the status of an invention. When an idea meets those standards, it becomes intertwined with the inventor's personhood---his conscious ability to frame representations about the world and act accordingly on them. The gain and loss of inventions is clearly related to the expansion and contraction of the inventor's personhood, because as he invents, the plans he formulates and actions he takes on his conscious perceptions change according to new representations based on the changed state of technological advancement.
In the end, intellectual property is different because it's inextricably linked with the property creator's personhood. Ideas are so profoundly human that it becomes unconscionable to think someone can claim ownership rights in a property interest arising out of another's invention. This solution isn't perfect, but it's one with which I would be more okay.
Non-transferable/alienable rights is a valid possible adjustment. But it is or would be so solely on the basis of its actual economic effect. This simple clear economic approach -- Posner's broadly -- is the only sensible way to understand actual law and activity here.
All that stuff about 'personhood' and 'intellectual domination' and 'possession' is otiose. Any attempt to make an a priori case for intellectual monopoly seems certainly doomed to failure -- for a very simple reason: they do not fit the basic physical facts.
Informational goods are nonrival: they are copyable and usable with no loss to the original. The relation between copies of information is abstract. A copy adds its value, and subtracts nothing.
Two notable ethical points follow from that. Copying is consistent with the principle of universalisation: a general rule that all should copy is not self-contradictory -- the opposite: if we all do it, we all gain. Second, restriction of copying fails a basic rights-justification or liberty principle: we are restricted only so far as we would harm someone else, yet for the notion of unauthorised copying any claim of loss has no grounds in any physical fact.
Ultimately, we want to be governed by the basic physical facts and how their constraints and ramifications allow us best advantage. 'Personhood' justifications for intellectual monopoly seem about as reasonable a basis for regulating behaviour as believing that taking a photo takes someone's soul.
> Informational goods are nonrival: they are copyable and usable with no loss to the original. The relation between copies of information is abstract. A copy adds its value, and subtracts nothing.
That is where I disagree. There's an important distinction between the inventive step leading to a discovery and subsequent copies thereof. A subsequent copy of an idea does not possess the same characteristics as the ``flash of genius'' in the mind of the person responsible for producing that idea. From this distinction, it follows that an idea, alone, has no intrinsic value--intrinsic value arises out of attachment to society.
Your argument is that an idea gains value as it spreads, but I don't think that's correct. Rather, societal advancement occurs when members of a society generate and produce novel ideas. There are two competing forces: (1) the spread of new ideas is akin to a positive feedback loop, since new ideas are based on old ones (there's evidence of this: technological advancement grows exponentially with respect to time); and (2) as an idea spreads, its connection to its creator fades, eventually causing misappropriation of that 'inventive step' and disincentivizing the creator's continued creation of new ideas. The belief that losing control over the spread of an idea on the basis that no harm to the information occurs from copies thereof is flawed: it focuses on the information, rather than the person who created it.
Permitting patent rights to vest only in the inventor transforms his talent into a commodity, rather than the fruits of that talent. It rewards the individual rather than those acting on the information for no purpose other than economic gain.
Judge Posner admits he is no expert on what the fixes should be and his tentative suggestions for fixing the system are, in my view, decidedly mixed on their merits (e.g., specialized adjudications before the USPTO - remember when it was suggested that a specialized appeals court would improve the patent system and the result was a court that has been so maximalist in its approach to patents that it has in itself become a significant part of the problem).
So where to begin?
Legally, it has to go back to fundamentals and, for me, this has to go back to the scope of patentable subject matter and whether this should be defined to include software at all.
The Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Note that, in defining this as one of the enumerated powers of the federal legislative branch, the Constitution does not mandate that the legislature provide for patent protection of any sort. It merely permits the exercise of such a power within constitutionally prescribed limits. Thus, any legitimate exercise of patent authority in the U.S. must come from Congress and must respect the constitutional bounds that any grant of patents be for "limited times" and be done in such a way as "to promote the progress of science and useful arts." Legally, then, any patent system in the U.S., if adopted at all, must be authorized and defined by Congress with a view to promoting the progress of science and, implicitly, must employ "limited times" consistent with what it takes to promote scientific progress.
The first issue, then, is whether patents are needed at all to promote the progress of science. In the U.S., in spite of philosophical arguments to the contrary by Jefferson (http://news.ycombinator.com/item?id=1171754), this has never been seriously in dispute. The industrial revolution was already well in progress in 1789, when the Constitution was adopted, and the federal authority, though generally regarded with great wariness at the time, was seen as vital to protect the rights of inventors and to reward them with limited monopoly grants in order to encourage the progress of science. In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "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 therefor, subject to the conditions and requirements of this title."
Thus, patents in the U.S. can be granted for any original invention that fits within the definition of patentable subject matter and that also meets the other conditions of the patent act (i.e., that is useful and non-obvious). Note, though, that the 1952 definition of patentable subject matter significantly expanded the scope of such subject matter in the name of bringing the patent laws up to date with developments in then-modern technology, all in the name of promoting the progress of science. It did so by defining patentable subject matter to include any "new and useful process" as well as any "new and useful improvement" of any original invention. Over time, "process" has come to embrace business methods and also software. And the protection of "useful improvements" made clear that new uses of existing machines or processes could be patented notwithstanding older Supreme Court decisions such as Roberts v. Ryer, 91 U.S. 150, 157 (1875) ("it is no new invention to use an old machine for a new purpose").
To promote the progress of science, then, Congress in 1952 allowed patents to be granted for any inventive process and for any inventive new use for any such process. In my view, this generally made sense for what was essentially the continued playing out of the same sort of industrial revolution that animated the original forms of patent protection granted in 1790. Looking at that language at that time, one could readily make the case that patentable processes and improvements thereon could and did promote the progress of science. Discrete inventions tended to be sharply differentiated and tended to involve significant development effort in time and resources. An inventor could keep a process secret and not patent it but the grant of a limited monopoly gave a decided inducement to disclose it to the world and, hence, to expand the broad pool of scientific know-how available to society.
Then came the digital revolution and, with software, a new or improved process can amount to an almost trivial variation on prior art amidst a seemingly endless stream of improvements developed in ever-rapid succession and with little or no capital investment beyond what developers would be motivated to do for reasons entirely independent of gaining monopoly protection for the fruits of their efforts. Moreover, there is little that is closed about such innovations: a wide knowledge base is in place, known to an international developer community that is basically scratching its collective head asking why it should be restricted legally from using techniques and processes that represent common knowledge in the field.
The main question, then, concerning software patents, is whether the existing framework makes sense as one that promotes the "progress of science" insofar as it grants patent protection to process inventions in this area. Congress needs to seriously ask itself that question. A second question, also tied to constitutional authority and assuming that it is legitimate to grant some form of patent for such inventions, is whether a 20-year period of exclusivity makes sense in an area where innovation occurs at blazing speeds and with not too much capital investment tied specifically to any given discrete invention. Is that necessary to promote the progress of science? That too is a question that Congress needs to consider.
Thus: (1) there is nothing magical about the current definition of patentable subject matter and Congress can adapt this to suit the needs of the time in promoting the progress of science, (2) process patents are in themselves a fairly recent phenomenon (at least in any large numbers) and it is no radical change to curtail them in areas where they make little or no sense in light of the constitutional purpose for why patents even exist in the first place, and (3) legitimate patent reform needs to go far beyond procedural fixes around the edges of the system and needs to focus on the realities of modern technology and whether the patent laws further or impede the progress of science as applied.
The policy debate can and will go all over the board on this but, if it is framed in light of the constitutional foundation for having patents in the first place, it can be shaped in a way that puts the focus on the fundamentals of what needs to be fixed as opposed to lesser issues that do not get to the heart of the problem. The main problem today is the blizzard of vague and often useless patents in the area of software. These are effectively choking all sorts of innovation and are benefiting mainly lawyers, trolls, and others who do not further technological development by what they do. It is a mistake, in my view, then, to swing too broadly in trying to fix things (as by advocating abolition of all patents) or to be so timid about the issues that reform is marginal at best and ineffective in dealing with the current crisis of an over-abundance of essentially worthless patents. Congress embraces the patent system as a whole and shows no hostility to its fundamentals. Reform must be shaped in light of those fundamentals but it must, at the same time, be meaningful to eliminate the main garbage from the current flawed system. Judge Posner has pointed the way generally and proponents of reform ought to follow his lead, with the focus being (in my view) on software.