Few understand the current state of United States patent law quite like Richard Posner. Currently serving as a U.S. Court of Appeals judge for the Seventh Circuit, he has authored nearly 40 books regarding economics and legal thought, and was one of the most cited American scholars of the 20th century. Most recently, he grabbed headlines by throwing out the entirety of an Apple vs. Motorola patent case that came before him in June.
This week, Posner took to his personal blog to deliver a critical analysis of a system he believes is in need of significant reform. In particular, he suggested the characteristics that have enabled pharmaceutical companies to pursue intellectual property strategies that benefit both business and public interests are largely absent in the software industry.
"Software innovation tends to be piecemeal - not entire devices, but components, so that a software device may have tens of thousands, even hundreds of thousands, of separate components, each one arguably patentable," Posner wrote. "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."
He conceded that the industries he cited were likely the two extremes of the spectrum, but addressing the business community collectively, Posner insisted that "patent protection is on the whole excessive" and that "major" changes were in order.
As Ars Technica columnist Timothy Lee noted, Posner's position does not afford him the ability to directly shape policy. However, his strong reputation could inspire legislators to take his suggestions regarding the duration and fair use of IP protection under advisement.