Posner unbound: Why the U.S. patent system is a mess

He's often referred to as one of the most brilliant people sitting on the bench. Agree or disagree, this much is beyond dispute: Judge Richard Posner is one of the more prominent public intellectuals in America. He also ranks as one of the nation's most outspoken jurists.

The latest evidence for that appellation comes in the form of an op-ed he's written for The Atlantic with the title, "Why There Are Too Many Patents in America."

A patent blocks competition within the patent's scope and so if a firm has enough patents it may be able to monopolize its market. This prospect gives rise to two wasteful phenomena: defensive patenting and patent trolls. Defensive patenting means getting a patent not because you need it to prevent copycats from making inroads into your market, but because you want to make sure that you're not accused of infringing when you bring your own product to market. The cost of patenting and the cost of resolving disputes that may arise when competitors have patents are a social waste.

The problem is aggravated by the right to a jury trial in cases in federal court when plaintiffs ask for monetary damage awards, according to Posner. Another issue he points to: Judges and juries have difficulty understanding tech.

"Yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats -- even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing. This problem is exacerbated by the fact that in some industries it is very difficult to do a thorough search of patent records to discover whether you may be infringing someone's patent; and even if doable, the search may be very expensive.

Surprisingly, Posner pulls back from offering specific reforms to the system, saying that he's not a patent expert. Still, he does offer the conclusion that "there appear to be serious problems with our patent system" as well as "almost certainly effective solutions."

Posner's essay follows by a month his June dismissal of the Apple v. Motorola lawsuit. Apple had claimed that Motorola had violated four patents. In return, Motorola had alleged Apple had infringed one of its patents. Posner determined that neither company had provided sufficient evidence to prove damages.