Patently Absurd

by on April 19, 2007 · 2 comments

I’m doing a story on the Verizon-Vonage case, and the more I think about the patent system, the more trouble I’m having believing that anyone could seriously support the Federal Circuit’s current patent rules.

So Verizon won its case on three patents, two of which were almost identical. So we’ve got this one, which seems to cover the concept of converting an IP address into a phone number. And then we’ve got this one which seems to cover the concept of making a wireless phone call via the Internet.

I want to step back from the specifics of the case (the Federal Circuit may or may not reverse the ruling—although even if they do, it won’t halp if Vonage has already declared bankruptcy) and ask what possible policy rationale there could be for granting patents like these. Why would we want to set up a system that in principle allows the first person who figures out how to hook the PSTN up to packet-switched networks to have a 20-year monopoly on that market?

Even if we had some insanely innovative guy who in, say, 1992, invented the first VoIP application, and even if at that point no one else had ever thought of sending voice calls over the Internet, I still don’t understand the policy rationale for banning anyone else from developing VoIP software until 2012. Even if it was wildly innovative, novel, and non-obvious in 1992, the shear march of technology would have rendered it obvious long before 2012. Hell, today I suspect most competent CS grad student could develop a perfectly functional VoIP application in a matter of weeks using off-the-shelf programming tools. What’s been holding it back is a lack of infrastructure, not any mysteries about how to write the software.

So somebody explain the argument to me. How does giving a single company a monopoly over an emerging Internet technology—even a company that really is years ahead of its time—good for innovation?

  • http://ben.klemens.org BK

    Fed Circuit judges take great pains to avoid policy arguments in their rulings. I think if you asked the judge why s/he allowed patents like these to stand (sorry, s/he’d lean heavily on how the patent has broken no rules, has correctly been put through the system, et cetera. To me, their interest is much more in maintaining and/or expanding the patent system then looking at the system’s effects on the non-patent world.

    As for the part in the Constitution (Art. I, sec 8.8) that says that patents shall be granted to promote the progress of science and useful arts—which implies that a patent system that does not promote progress is unconstitutional—judges often take the attitude that that part of the Constitution is either unenforceable or just rhetorical fluff. It amazes me how much effort has gone into making sure that patent rulings in no way consider whether the patent, or any aspect of the patent system, is at all beneficial.

    As for how anyone could seriously support the Federal Circuit’s patent rules, it seems the Supreme Court isn’t, and is slowly but surely reversing the CAFC’s expansions of patent law—often via arguments that rightly include a policy component.

  • http://ben.klemens.org BK

    Fed Circuit judges take great pains to avoid policy arguments in their rulings. I think if you asked the judge why s/he allowed patents like these to stand (sorry, s/he’d lean heavily on how the patent has broken no rules, has correctly been put through the system, et cetera. To me, their interest is much more in maintaining and/or expanding the patent system then looking at the system’s effects on the non-patent world.

    As for the part in the Constitution (Art. I, sec 8.8) that says that patents shall be granted to promote the progress of science and useful arts—which implies that a patent system that does not promote progress is unconstitutional—judges often take the attitude that that part of the Constitution is either unenforceable or just rhetorical fluff. It amazes me how much effort has gone into making sure that patent rulings in no way consider whether the patent, or any aspect of the patent system, is at all beneficial.

    As for how anyone could seriously support the Federal Circuit’s patent rules, it seems the Supreme Court isn’t, and is slowly but surely reversing the CAFC’s expansions of patent law—often via arguments that rightly include a policy component.

Previous post:

Next post: