It’s Time To Re-Establish That If A Patent Blocks Progress, It’s Unconstitutional

Patented sidewalk
Patented sidewalk (Photo credit: tellumo)

It’s time for real patent reform

Andy Kessler has one of his typically insightful Wall Street Journal opinion pieces in which he says it’s time for real patent reform (rather than the joke of patent reform we had last year). His main concern is the toll that patent trolling is taking on innovation. He goes through a number of different lawsuits and shakedowns — many of which we’ve spoken about here — before suggesting a few potential changes to the patent system which he thinks should be in any patent reform effort:

Time. Reform should start with the phrase “limited Times.” For patents, it was originally 14 years, until 1861 when it was lengthened to 17 years, and then in 1995 it was extended again to 20 years with a five-year extension under limited circumstances. That may seem fine or even a little short for pharmaceuticals or gas turbines, but in technology things move a lot faster. Even AT&T won’t make you keep a phone for more than two years. Apple is on its fifth iPhone iteration in less than five years.

“Times” ought to float by product and industry, perhaps with expirations based on the half-life of the product. PCs and telecom equipment have about a three-year half-life, pharmaceuticals more like 10. Someone needs to bring a clever case to the Supreme Court showing that 17 years, let alone 25, is an eternity and damaging for a fast-moving industry like tech.

This is a good suggestion (and we’ve seen similar suggestions, of course, when it comes to copyright, where the terms are an order of magnitude more insane). However, given the Supreme Court’s rulings in Eldred and Golan, it seems unlikely that it gives a damn about if the laws actually damage industries. The Supreme Court has basically said that it’s Congress’ prerogative to do what it thinks is best, even if what it thinks is wrong.

Still, though, it is important to keep focus on the “limited times” clause in the Constitution, because it really is key, even if the Supreme Court horribly misinterpreted it. Highlighting, repeatedly, how excessively long IP monopolies hinder progress is important, because eventually the message has to get through.

Value. We have to stop allowing juries to establish the value of patents. In just the iPad alone, I would estimate there are 50,000 to 100,000 patents covering the chips, display, storage, communications and other features. They can’t all be worth $6 per patent per device. Money isn’t mentioned in Clause 8, but the market rather than juries can determine value.

This is a problem.

Read more . . .

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via Techdirt

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