Judge Richard Posner Says Patent Protection Is “Excessive”

Posted Oct 2, 2012

Judge Richard Posner is really bothered with patent law.  Judge Posner, a Court of Appeals judge, wrote on his blog yesterday that there has been an explosion of patent and copyright protections.  “I am concerned that both patent and copyright protection, though particularly the former, may be excessive,” wrote Posner in his blog.  He believes that the two biggest culprits of excessive patent and copyright protection is pharmaceuticals and software.

He said that the difficulty of patent tech devices is because every device is made up of thousands of different components and all of them are patentable.  By having “huge patent thickets,” it makes life easier for companies to protect patents and sue alleged infringers.  Below is an excerpt from his blog:

 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.

Judge Posner also said that it is hard for judges and jurors to accurately decide whether software or hardware has been infringed because they lack specific technical knowledge.  “My general sense, however, bolstered by an extensive academic literature, is that patent protection is on the whole excessive and that major reforms are necessary,” he added.