Recently, I had to explain my aversion to Intellectual Property law, despite my PhD work being on copyright law and policy. I said it was the most inelegant and dishonest branch of the law. The central dictum is “ideas are free, only expression is protected.” Yet, even lists of addresses and telephones numbers were protected by copyright (this was subsequently changed in the US). There just did not seem to be an intellectual foundation; just a series of post hoc rationalizations.
In the same spirit, I was surprised at a panel by someone asking me to express my views on the recent Apple v Samsung patent case. My answer was in two parts. More or less the same issues were litigated in a Tokyo court as in California but the rulings were diametrically different. So I am skeptical. In addition there is the general question of a patent protecting the design of a rectangle with rounded edges.
Therefore, the long piece by Charles Duhigg in the NYT resonated.
However, many people argue that the nation’s patent rules, intended for a mechanical world, are inadequate in today’s digital marketplace. Unlike patents for new drug formulas, patents on software often effectively grant ownership of concepts, rather than tangible creations. Today, the patent office routinely approves patents that describe vague algorithms or business methods, like a software system for calculating online prices, without patent examiners demanding specifics about how those calculations occur or how the software operates.
As a result, some patents are so broad that they allow patent holders to claim sweeping ownership of seemingly unrelated products built by others. Often, companies are sued for violating patents they never knew existed or never dreamed might apply to their creations, at a cost shouldered by consumers in the form of higher prices and fewer choices.
“There’s a real chaos,” said Richard A. Posner, a federal appellate judge who has helped shape patent law, in an interview. “The standards for granting patents are too loose.”