The following is an excerpt from Richard A. Posner | October 15, 2012 | Slate.com |
How to fix our broken system for stimulating invention.
The recent wave of attention to patent litigation has focused on struggles between technology giants, like Apple and Google, but the problems with our patent system, which are profound, are not limited to software patents. The problem must be clarified before feasible solutions can be formulated.
The idea behind patent law is to encourage inventions by giving the inventor a period of years (normally 20) in which he has the exclusive right to use (and to sell) the invention. This prevents free riding by a competitor who would, by copying the invention, avoid the cost of inventing.
But as patents have evolved in the U.S. legal system, they are not an ideal solution to the problem; instead they are part of the problem. Although they are supposed to be limited to inventions that are novel, useful, and non-obvious, they are granted rather promiscuously by the Patent and Trademark Office. And while they can be challenged in court, jurors tend to be biased in favor of patent holders. That is one reason that even a patent granted for a minor invention of little value can be a potent competitive weapon. Patent “trolls,” as they are called, purchase large numbers of patents in the hope of using the threat of a patent-infringement suit to extort a patent-license fee from a company that makes a similar product; the product may or may not infringe, which is often very difficult to determine, but the alleged infringer may decide to pay the licensee fee, if it is not too large, to avoid the cost of litigation.
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