Submitted by Well known judge Richard Posner scores another home run. “I am concerned that both patent and copyright protection, though particularly the former, may be excessive. To evaluate optimal patent protection for an invention, one has to consider both the cost of inventing and the cost of copying; the higher the ratio of the former to the latter, the greater the optimal patent protection for the inventor.”
The page failed to load a couple of time for some reason, but in the end it was worth it: beautifully written article, which explains very clearly what the issues with modern IP law are.
I wish it made more concrete propositions about how patent law should be changed though. The follow-up posted by Becker on the same blog and on the same day is interesting in this regard, as it proposes the extreme solution of dropping patents on anything but a few products altogether, something which was already somewhat hinted at by Posner : http://www.becker-posner-blog.com/2012/09/reforming-the-patent-syst…
I personally wouldn’t agree with that, though, since the choice of “patentable” products would necessarily be quite arbitrary. It would be better, in my opinion, to have a weaker, but universal patent system, that doesn’t need to be tweaked for every new product that comes out.
Edited 2012-10-04 04:52 UTC
You could just amend the current system so that patent duration depends on effort spent researching the invention. An invention that took a massive amount of time and money (pharmaceuticals) gets a patent that takes a relatively long time to expire (e.g. 20 years), and inventions where a script kiddie could figure it out in 10 minutes get patents that expire in less time than it takes for them to be granted.
You could even simplify this – have a different patent duration for each industry that reflects the average cost of developing inventions in that industry. For software the average cost of developing an invention is approximately the same as the cost of 3 phone calls (to find a uni student who’s looking for a thesis subject) and a carton/box of beer.
– Brendan
That would be interesting indeed, but then how would development time and cost be measured ? From the light of the recent Apple vs Samsung events, I could well imagine some tech companies claiming that they have been playing with an idea for decades, and that the salaries of hundreds of wishfully thinking workers have funded this silent development.
Edited 2012-10-04 06:21 UTC
For software; I’d measure it in units of “uni students”. Ask 100 different uni students to solve the problem and see how many “invent” the same invention. If all of them come up with the solution that’s described by the patent, then it’s a “zero uni student” patent worth nothing (declared obvious), and if only 3 come up with the solution described by the patent then it’s a “97 uni student” patent worth about about 97 dozen bottles of beer.
Of course if none of the uni students “invent” the invention in the patent you’d expand your search – try 1000 uni students, then 10000, etc. If you ever run out of uni students, then you assume that most uni students have been inventing something better than the method in the patent and declare the patent “irrelevant on the grounds of obsolescence” (worthless).
For this system, the maximum worth of any patent is equal to the number of uni students available minus 1, multiplied by the price of 12 bottles of beer. If a country has 1 million uni students and a bottle of beer costs $1; then the maximum worth of a patent is (almost) $12 million.
– Brendan