Why posner is wrong

As more companies seek overly broad patents, the parties who suffer most are consumers. Posner also was a thoughtful academic with a longtime appointment to the University of Chicago School of Law. He was committed to mentoring legal talent. Lawrence Lessig—famous for his work on remixed works and as creator o f [7] Creative Commons [8] — once clerked for Posner. The blog provided an outlet for the University of Chicago professors to muse over rulings, explore current events and show a human side to their work.

His opinions and his other writings make clear the law is as much a tool for learning as it is a tool for justice. What is odd is that most of the criticism I receive is of my writings or speeches about the judicial process, as exemplified by this article. Criticisms of my judicial opinions are rare, even though I have written more than published opinions in my 34 years as a federal appellate judge.

And such criticisms as the opinions do receive differ in tone and content from the criticisms of my extrajudicial comments on the judicial process. The fashionable academic attack on patents is just one part of the full-scale attack on market institutions that has led to an economy mired in 1. The basic debate in this field can be summarized in one proposition: Strong patent protection is a threat to the overall operation of the legal system, so the appropriate set of remedies calls for narrowing the scope of the patent system at every opportunity.

The current three-part attack on the patent system starts with the proposition that the requirements needed to obtain a patent should be restricted, especially in the areas sof software and business method patents. Second, the ability to license patents should be restricted.

Finally, the remedial protections given to patents by way of damages and injunctions should be weakened. The net effect of these combined maneuvers is to increase the cost of patents, which is likely to result in an increase in the size of the public domain relative to the areas of patented technology.

The question is whether this seismic shift is a good thing. What is strange about this debate is that, often times, the opposition to patents is put forward on the grounds that it will advance economic efficiency by eliminating the administrative costs and expensive disputes that always crop up in this area.

The troll objection is wildly overstated. There is nothing wrong with a firm that specializes in developing technologies for licensing to others. That is just a sensible form of market specialization, in which the force for innovation comes from one firm, often with a single idea and modest capital, which hopes to reap hefty profits by issuing non-exclusive licenses to companies that can then incorporate this patent into their business models.

An attack on the division of labor seems bizarre, especially when launched in the name of economic efficiency. Nor is there any obvious global sign of patent malaise in the software industry. Last I looked, the level of technological improvement in the electronics and software industries has continued to impress.

The rise of the iPad, the rapid growth of social media, the increased use of the once humble cell phone as a mobile platform for a dizzying array of applications—these do not point to industries in their death throes. It may well be the case that a better patent system could have seen more rapid growth in technology.

Moreover, he says nothing about the incredible success that a variety of pooling and licensing devices have had in spreading the use of patents through a wide range of standard setting organizations.

Nor does he mention any of the private devices for putting valuable technology into the public domain. These patents are easy to protect through the patent system because their chemical composition can be described with exactitude. And they surely need the patent protection in order to secure the major investments that are required not only to isolate the desired compounds but also to run them through the torturous approval process of the Food and Drug Administration.

But it is a whopping nonsequitur to assume that because pharmaceuticals are the poster-child for patent protection that software should be kept out of the system.