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.