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In an article for The Atlantic, Judge Richard Posner, who recently presided over and dismissed a patent infringement suit between Apple and Motorola and is generally regarded as one of the most influential judges of our time, puts forth a number of arguments serving to indict the availability of patents in categories of technology, specifically those where the “cost of invention” is low. Judge Posner appears to contend that, because a particular invention or improvement may be part of a broader plan of improvement, and the incremental cost of making said invention is small, making the case that the invention is worthy of patent protection is difficult.
While there may be merit to this argument, I believe it will give rise to results that should be avoided. I do not believe the Judge Posner’s suggestion of industry-by-industry patent term lengths can be fairly implemented. While some inventions within a particular industry require differing levels of expenditure to realize the invention, and while the frequency of greater expenditures necessary may be greater in particular industries, reducing patent term lengths in certain industries will chill investment in research on inventions in that industry that are projected to require greater expense in its development.
Moreover, difficulty will almost certainly arise in making the determination as to whether a patent application falls within oneof the term-shortened industry. Almost certainly, so that the applicant/patentee may know the length of his patent term upon its issuance, the USPTO will have to be the responsible agency for making the classification. As a patent attorney, I know that if my client’s application was categorized into a term-shortened industry, I would fight like hell to get it reclassified. This would impose an additional burden on the USPTO, an agency which Judge Posner himself recognizes is underfunded and understaffed.
What’s more, the determination of classification would quite possibly be a determination that could be put before the very courts Judge Posner contends “have difficulty understanding modern technology.” Requiring such courts to make yet another decision that quite likely will fall to very subtle distinctions is only aggravating the problems surrounding patent litigation.
I agree with some of the potential solutions offered by Judge Posner, particularly special training for federal judges who volunteer to preside over patent litigation. However, disadvantaging industries based on rapidity of innovation will, I fear, have the opposite effect than intended.