19th century solution to 21st century patent problems?
Last weekend I read a fascinating article by Prof. Gerard Magliocca of the Indiana University School of Law entitled Blackberries and Barnyards: Patent Trolls and the Perils of Innovation, 82 Notre Dame L. Rev. 1809 (2007).
Prof. Magliocca compares 19th century problems with "patent sharks" to today's problems with "patent trolls" and suggests the only politically acceptable path out of today's problems may be the path taken out of the 19th century problems, i.e. elimination of the class of patents that triggered the problems. He provides tons of interesting context, but here's one of his proposals,
If the historical parallel between sharks and trolls rings true, then the obvious implication is that repeal is the only real answer to the troll problem. This is does not mean that we should wipe out all technology patents. A more discriminating approach would focus on the most problematic of these patents, which deal with software and business methods. Critics of the recent expansion of patent subject matter into these areas might describe this “experiment” as a disaster on a par with the design patent fiasco of the 1860s.
Among the background I found most interesting was the nature of the arguments in the 1880s. Many put the blame on the "reckless methods of the patent office." Sound familiar?
And, just as today's Biotech industry is opposed to any patent reform, the 19th century had powerful advocates for the status quo, including Thomas Edison, who argued that any revision of the patent statues would "strongly tend to discourage and prevent perfection of useful inventions by those most fitted for that purpose..."
Yes, it's sixty pages (double spaced) with tons of footnotes, but if you skip the footnotes and skim the text, there's plenty here to interest any engineer who's had occasion to learn the words "patent troll.".
