Klemens on the Federal Circuit

One of the best articles I’ve seen that talks about how courts, especially the CAFC, can approach patent cases with some concern over the effects on innovation and the meaning of the Patent Clause: Dan L. Burk and Mark A. Lemley, Policy Levers in Patent Law, 89 Virginia Law Review 1575 (2003).

I have a review of the article somewhere on IPcentral. The gist: innovation in the early technology industries proceeded without patents, but economic and industry developments have made patents important for the cumulative path of software/Internet innovation. These industries will benefit from patents that are narrow in scope, which will induce investments in, commercialization of and incremental improvements on, technologies.

One of the best articles I’ve seen that talks about how courts, especially the CAFC, can approach patent cases with some concern over the effects on innovation and the meaning of the Patent Clause: Dan L. Burk and Mark A. Lemley, Policy Levers in Patent Law, 89 Virginia Law Review 1575 (2003).

I have a review of the article somewhere on IPcentral. The gist: innovation in the early technology industries proceeded without patents, but economic and industry developments have made patents important for the cumulative path of software/Internet innovation. These industries will benefit from patents that are narrow in scope, which will induce investments in, commercialization of and incremental improvements on, technologies.

The “unconstitutionality argument” is one of the more shill and ridiculous appliances in the the anti-patent toolbox.

1) Patents are not common law or executive grants, they are statutory creations.

2) Congress passes the Patent and (c) statutes pursuant to A.I, S.8, cl.8.

3) Judicial review of whether Congressional statutes comport with their enabling authority is under rational basis review (including Commerce Clause, raise and support armies as in FAIR v. Rumsfeld), a standard about which Klemens is either ignorant or wildly misinformed.

The issue is not whether an INDIVIDUAL patent does or does not promote the progress of science, determined after the fact (because how can we predict what a patent will do?); instead, the issue is whether Congress could possibly rationally believe that patent statutes and the statutory authority to the PTO will promote the progress of science and the useful arts.

GMUSL,

I don’t think anyone is claiming that the patent system is unconstitutional. The point here is that Congress has never specifically said anything about the patentability or unpatentability of software patents. The issue is one of statutory construction. Given that Congress hasn’t explicitly said one way or the other, the courts have to come up with the interpretation that’s most consistent with the spirit of the statutes and the Constitution.

Which is where the language of the Progress Clause becomes relevant. When choosing between two equally plausible readings of a patent statute, it’s perfectly reasonable for the courts to take the Constitution’s “progress of science and the useful arts” language into consideration. If one reading of the statute is likely to promote the progress of science and another reading is likely to retard it, that seems like a pretty good argument for adopting the more pro-progress reading.

If Congress were to step in and specifically authorize software patents in statute, then I agree with you that a Progress Clause challenge would be pretty weak. But that’s not what’s at issue here.

The “unconstitutionality argument” is one of the more shill and ridiculous appliances in the the anti-patent toolbox.

1) Patents are not common law or executive grants, they are statutory creations.

2) Congress passes the Patent and (c) statutes pursuant to A.I, S.8, cl.8.

3) Judicial review of whether Congressional statutes comport with their enabling authority is under rational basis review (including Commerce Clause, raise and support armies as in FAIR v. Rumsfeld), a standard about which Klemens is either ignorant or wildly misinformed.

The issue is not whether an INDIVIDUAL patent does or does not promote the progress of science, determined after the fact (because how can we predict what a patent will do?); instead, the issue is whether Congress could possibly rationally believe that patent statutes and the statutory authority to the PTO will promote the progress of science and the useful arts.

GMUSL,

I don’t think anyone is claiming that the patent system is unconstitutional. The point here is that Congress has never specifically said anything about the patentability or unpatentability of software patents. The issue is one of statutory construction. Given that Congress hasn’t explicitly said one way or the other, the courts have to come up with the interpretation that’s most consistent with the spirit of the statutes and the Constitution.

Which is where the language of the Progress Clause becomes relevant. When choosing between two equally plausible readings of a patent statute, it’s perfectly reasonable for the courts to take the Constitution’s “progress of science and the useful arts” language into consideration. If one reading of the statute is likely to promote the progress of science and another reading is likely to retard it, that seems like a pretty good argument for adopting the more pro-progress reading.

If Congress were to step in and specifically authorize software patents in statute, then I agree with you that a Progress Clause challenge would be pretty weak. But that’s not what’s at issue here.

GMUSL is right. Its the system and the aggregate effects of patents that matter, its not one patent per week, nor anecdotal evidence, often cited by Tim. Pointing out that one thing wrong, even if you do it on the daily, and trying to generalize it to say the whole system and its impact are bad for innovation, well, that lacks sense of proportion as well as perspective.

Its interesting to read Tim’s interpretation of the Patent Clause. On the one hand, he seems to advocate a subjective standard for patentability and validity, where a judge should be expected to understand and administer innovation with no standard; on the other hand, Tim assumes there can only be one kind of relationship between patents and innovation, and thereby has no awarenes and gives absolutely no analysis of how “to promote the progress” has been treated by courts and economists for the past 4 or 5 decades.

GMUSL is right. Its the system and the aggregate effects of patents that matter, its not one patent per week, nor anecdotal evidence, often cited by Tim. Pointing out that one thing wrong, even if you do it on the daily, and trying to generalize it to say the whole system and its impact are bad for innovation, well, that lacks sense of proportion as well as perspective.

Its interesting to read Tim’s interpretation of the Patent Clause. On the one hand, he seems to advocate a subjective standard for patentability and validity, where a judge should be expected to understand and administer innovation with no standard; on the other hand, Tim assumes there can only be one kind of relationship between patents and innovation, and thereby has no awarenes and gives absolutely no analysis of how “to promote the progress” has been treated by courts and economists for the past 4 or 5 decades.