The Factless Face of Patent Criticism


Joseph Schuman
May 22, 2013
Patent Law Judges Gajarsa and Posner

The devil of any policy or legal dispute is invariably in the details. And so, in the case of patents, are the trolls.

The problem, as we saw during a recent debate among judges about the patent system, is that for all the sturm und drang over so-called patent trolls and other alleged patent problems, critics of the system don’t offer details.

The debate, co-sponsored by George Mason University School of Law and the Federalist Society, featured retired judges Arthur Gajarsa and Paul Michel of the patent-specializing U.S. Court of Appeals for the Federal Circuit, as well as Seventh Circuit appeals Judge Richard Posner, who occasionally volunteers to hear patent cases at the district level and makes no secret of his scorn for how patent protection works. It was moderated by Douglas Ginsburg, a senior judge of the U.S. Court of Appeals for the D.C. Circuit.

Posner drew national headlines last summer while presiding over a lawsuit between Apple and Google’s Motorola Mobility by declaring a plague on both their houses and patent litigation as a whole. During the debate this week at the National Press Club, he seemed ready to throw out the whole patent system.

“There just is no good reason in my opinion why, when we’re giving monopoly to an inventor, unless because of very heavy up-front cost, very low cost of copy and so on, the invention wouldn’t be made if you didn’t give the inventor monopoly that would have enabled him to recoup his up-front cost, and these conditions for the grant of a patent are very rarely encountered in the real world,” Posner said during a nearly 10-minute tirade against patents.

“Anytime an invention is the result of kind of routine research activities … it should be regarded as obvious as not requiring patent protection,” he later added.

Posner’s judicial counterparts at times appeared shocked at pronouncements that seemed to contradict two centuries of intellectual property law rooted in the Constitution.

But his criticisms were so broad and self-admittedly uninformed at times that fellow panelists’ most repeated retort was to caution against what Judge Michel called “gross overgeneralization.” (One typical Posner comment concerned the International Trade Commission: “I don’t know a great deal about it, except that it overlaps and often is in conflict with district courts and parallel litigation pending.”)

The only specific comment from Posner came when Judge Gajarsa – responding to Posner’s invective against software patents and trolls – noted that software patents help cultivate technology like the Google search algorithm, and that patent-critics would consider Stanford University a troll since it benefits from the patent but doesn’t produce a product.

Posner jumped in to call Stanford’s revenue from the patent “grossly excessive compensation” because Google’s founders “would have built it for nothing, right? … It didn’t cost anything to build it.  They’re graduate students.”

Gajarsa appeared to be momentarily taken aback.

“It’s not a question of cost; it’s a question of return on a particular invention,” he countered. “It’s the reaction of a free marketplace that places the value of that particular invention.”

Not to Posner, who declared “we are wasting money in paying hundreds of millions of dollars to inventors.”

Judge Michel, too, at times seem flabbergasted by Posner’s willingness to gut the patent system and his fact-free monologues about the dangers of “trolls” that license – and want to protect — the technologies they invent or purchase rather than manufacture themselves.

“The comfort level, it seems to me, should reflect the merit of the suit, rather than the business model of the plaintiff,” Michel said.  “If the suit is meritorious and there is a valid patent and it’s being infringed and there are real damages that can be proven, then that seems like an appropriate outcome, at least to me, and I don’t care too much whether the plaintiff makes products himself or not.”