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Chief Patent Judge Feigns Ignorance Of How Often Patents Are Used To Hinder Innovation

TechDirt post by Mike Masnick

Chief Patent Judge Feigns Ignorance Of How Often Patents Are Used To Hinder Innovation

from the willful-ignorance-or-scary-ignorance? dept

Law professor Doug Lichtman’s latest “IP Colloquium” podcast is an interview with Judge Randall Rader, who’s the chief Judge of CAFC, the appeals court that handles most patent cases. Rader is known for being outspoken and opinionated (but also very, very smart), so it’s always fascinating to hear what he has to say. The first part of the interview is interesting from a purely procedural standpoint, as Rader goes through the process by which the CAFC makes decisions, including the fact that nearly every case is decided almost immediately after the oral hearings. It sounds like they almost never feel the need to sleep on a decision. However, the latter part of the interview is where things get really interesting. While Lichtman and I tend to disagree over copyright issues, we find a lot more common ground on patent issues, with Lichtman pointing out the harm that patents often seem to do to innovation, as well as questioning why independent invention isn’t a sign of obviousness.

Rader’s responses are thoughtful, and interesting, but I feel that he makes some assumptions that don’t have much support, and makes a few other statements that simply are not an accurate representation of reality. Rader starts out by suggesting that it’s simply impossible for any tech firm to “keep up” with technology innovation today (partially true), and the only way to do that is through cooperation (true) and that patents “facilitate” that cooperation (sometimes, but rarely, true). He paints this idealistic, and not very accurate, picture of innovation occurring thusly:

In order to really see the future, you’ve got to bring together some kid writing software in Bangalore, with a laboratory professor in Chengdu, with a university researcher in Kyoto and a startup company in Boston. And they each have a piece of the puzzle which may be “Windows 7,” or whatever the future of technology is, but no single laboratory, no single company, anymore invents the future.

Now, to some extent that’s true. No single company does invent the future, but I actually see that as a pretty strong argument against patent protection in most cases, since patents in situations like that now create transaction costs that hinder innovations that advance the market. It’s putting a toll on innovation, which can be much more efficiently handled in the actual marketplace.

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