Should patent law imitate copyright? Posner explains

Richard Posner
Debate concerning the optimal scope and duration of intellectual property rights is well-known. But when is Richard Posner, the celebrated co-author of law & economics must-have classic The Economic Structure of Intellectual Property Law, to speak out, well, then it is time to sit down and listen carefully. 
In a post published last Sunday on The Becker-Posner Blog (which has just been commented also on The 1709 Blog), Judge Posner addressed the following question:
Do patent and copyright law restrict competition and creativity excessively?
The answer seems to be affirmative, although the need for reform is less acute in copyright than is in patent law (but it is sufficiently acute to warrant serious attention from US Congress and the courts). 
This conclusion is quite interesting, in that copyright has been increasingly (and constantly) criticised as being too wide, long, and having been reformed contrary to the central tenet in the relevant clause of the US Constitution, that is "to promote the Progress of Science and Useful Arts". In comparison to copyright, patent law has been perhaps subject to less (or, in any case, more nuanced) criticism.
According to Ponser, patent law should be reformed by taking into account some historical (in the sense that they tend to disappear nowadays) features of copyright. In particular, the fact that copyright protection was (rather than ‘is’) different depending on the subject-matter at stake is an important aspect which should be adopted also in patent law:
"Although there are some industry-specific differences in patent law, for the most part patents are “one size fits all,” so far as length of protection and criteria and procedures for the grant of a patent are concerned. In contrast, copyright protection tends to vary considerably across different media. For example, when recorded music came into being, instead of providing it with the same copyright regime as already governed books and other printed material, Congress devised a separate regime tailored to what were considered the distinctive characteristics of music as a form of intellectual property. Patent law could learn from that approach."
Patent Kats -
Mildred pictured while attempting
to draft her patent application
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 ratio is very high for pharmaceutical drugs, but this is not the case for other products (like software) which, nonetheless, are subject to the same regime as pharmaceutical drugs. According to Posner, software industry is a progressive, dynamic industry rife with invention. However, 
"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." 
Although copyright enjoys excessive duration and courts tend to interpret fair use in too a narrow manner, 
"The problem of copyright law is less acute than the problem of patent law, partly because copyright infringement is limited to deliberate copying [but only as far as damages are concerned: see 17 USC §504(c)(2). In general, innocent infringement is not a defence, unless under particular circumstances: see 17 USC §302(e). In 1931 the US Supreme Court established in fact that "Intention to infringe is not essential under the [Copyright] Act."]patent infringement does not require proof even that the infringer was aware of the patent that he was infringing." 
Copyright Kats -
Reaching the camera is never easy,
complains Maurice
This Kat believes that, whilst one-size-fits-all rights guarantee a higher degree of legal certainty, they are a good idea when such rights: 1) are limited in scope, and 2) concern homogeneous subject-matter. For both copyright and patents this does not seem to be the case any longer. In addition, there seems to be a global tendency to harmonise upwards. This is certainly true if we think of copyright. For instance, the EU has recently adopted Directive 2011/77/EU, which extended the term of protection for performers and sound recordings from fifty to seventy years. This is just an example which shows how copyright is becoming increasingly similar to patents, as far as one-size-fits-all trends are concerned. 
The stance adopted by Posner, who highlights the importance of taking into account the specific characteristics of a given copyright/patent subject-matter when devising the appropriate protection regime, is refreshing, especially in light of the fact that current reforms have been supported by different rationales/justifications altogether.
As commented on Ars Technica, "while Posner doesn't have the power to directly change patent law, he is widely known and respected both in academia and the judiciary. So his views are likely to have an impact on how policymakers—perhaps including Supreme Court justices—view patent law and policy."
Will this happen?

Historical account of innocent infringement defence under US copyright here.
Should patent law imitate copyright? Posner explains Should patent law imitate copyright? Posner explains Reviewed by Eleonora Rosati on Tuesday, October 02, 2012 Rating: 5


  1. I think it will happen because it needs to. It is increasingly clear that after some two hundrednfifty years of dealing with immaterial property our societies still did not get this game right. Therefore, even the fundamentals of our IP systems are ripe for change. The onset of digital background for everything that we do made these defficienies abundantly clear and calls for greater effort in reforming the IP.

    IPKat blogged on my article Abundance of Sources which deals with the change of social context for IP and the need to change.

  2. I once thought, like Judge Posner, that different technical fields could have different lengths of protection. Then I realised the practical implications...
    Where patent law differs from one-size-fits-all (for instance, in supplementary protection certificates for pharmaceutical and phytopharmaceutical products), it has done so under the pressure of powerful lobbies. I don't even want to imagine the jockeying for influence if lawmakers were to introduce different patent terms for different technical fields. Nor do I want to imagine the logical contortionism that attorneys would apply to get their application classified in the "right" field (that is, the one with the longest terms).

  3. I'm sure Posner has an impressive grasp of law. His commercial awareness seems to be rather more lacking. Try telling Microsoft that the cost of developing software is cheap. Try telling a university spin-out that they don't need patent protection because they have "first mover" advantage and can rely on their non-existent "brand" value. Try telling over-burdened examiners at Patent Offices around the world that they will now also need to argue with the applicant over the length of protection an invention merits. And that it would be helpful if they could finish examining a patent application before its shortened term expires. Try telling companies carrying out freedom-to-operate searches that in-force investigations will now need to consider each claim separately; the software claims in a bioinformatics patent may have expired, while the product-by-process claims may have another 10 years to go. The diagnosis that something is wrong might be correct, but this does not seem to be the solution.

  4. I agree that different sectors require different terms of protection, but I also believe some of the principles should differ.

    The sheer number of patents covering products such as mobile phones and products complying with standards makes searching and identifying all rights applicable to a product practically impossible (i.e. without spending vast sums of money), and the developer of a product will in most cases have no knowledge of the 'landmine' patents themselves or of any products embodying those patents. This is especially the case regarding patents owned by NPEs, where there will be no publicly available products.

    Introducing a requirement for copying, or a defence of 'independent invention' of wide scope into patent law for software, computer-implemented and electronic inventions would, in my opinion, be fair. I recognise that copying is not part of the patent system at the moment. However, when I read press statements from holders of electronics patents holder - particularly from NPEs - where they talk of infringers 'free-riding on the back fo their inventions', where there is no causal connection, there has been no free-riding whatsoever. Where there is no free-riding (subconsicous or otherwise), why should a later, independent inventor have to pay a patent tax? 'Because that's how the system works' is not a good enough answer.

    Evidence would be key - there could be a rebuttable presumption that act/products falling within patent claims were infringing, subject to the alleged infringer showing on the balance of probabilities that the inventor had no knowledge of either the patent or the patentee's invention - basically like in copyright but with a reversal of the burden of proof.

    I expect that negative responses to this post (if any come at all) will say things like 'you clearly don't understand the patent system'. I do understand the patent system as currently formulated, which I think is broken in relation to software, electronics and telecoms inventions. This is a proposal for reform.

  5. Theoretical models have suggested that altering patent term for different technologies would be of benefit to the economic system as a whole. Encouraging research and investment to certain areas (such as orphan diseases) might require terms of more than 20 years. The incentive to consider changing patent terms has to come from the recognition that the present system favours certain industries/areas over others.

  6. This comment has been removed by a blog administrator.

  7. Posner errs on almost every count.

    It it fantastic to assert that bonkbusters are more worthy of protection than academic work and textbooks which do have merit in educating the next generation. They pander largely to the factors that impede the progress of Western civilisation. It is also ignorant to supose that the true cost of production is as promulgated: the film industry is the home of creative accounting and the cost of production is commonly exxagerated indeed manipulated to ensure that the application of the usual Hollywood "Net Profit" definitions yield no revenue for the participants in net profits.

    His position on identification of heirs is no less absurd. There is a whole industry devoted to tracing heirs for probate and administration purposes, an industry largely backed by insurance, whereas almost all "solutions" to the "orphan works problem" involve expropriation of property and the removal of the right of an owner to control licensing. Oh, and there are also of course probate registries.

    There are two major problems that Posner fails even to identify. First, royalties should be a charge on the copyright. There are far too many histories of composers being left bereft of income where a corporate assignee has been liquidated but the liquidator has assigned the copyright (or part) on and the assignee hasa no contractual royalty obligation to the author (or indeed performer but that is another story). Second, there are libraries of "locked up" works of cultural importance in relation to which an assignee decides that it is not economically viable (or he may make the decision out of malice) to permit the copying of important recordings of songs. In relation to sound recordings there should be an early "use it or lose it" provision.

    Related to the latter, it is very widespread in the audiovisual world that time windows of exploitation and media transfers are managed to as to minimise the value to the user. Time windows for film release and I-tunes are the worst offenders in this regard, and I-tunes is at best parasitic on the creators of music.

  8. I think you've mistaken Judge Posner's comment about copying reducing the problem in copyright cases because he used the word "deliberate." I don't believe he was meaning to say "willful," but rather than the original work must be copied before an infringement claim will lie, which is not true of patent law. He should have said "actual copying," not "deliberate copying."


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