Dems or Pubs better for patent law?

[catalonia]

I was wondering what people think about whether the democrats or the republicans are better for the patent system.

In a bygone era, I would have instantly said that the republicans are better, since the democrats have historically shown great hostility
towards patents, with Justice Douglas's decisions being a good example of this fact.

Supposedly the democrats have finally come to the realization that patents are not the evil they have historically thought they were, with antitrust and patent law mutually working together to reach the common goal of promoting innovation .

Frankly, I don't buy it, and all one has to do is read some Supreme Court decisions like FTC v. Actavis (payment to settle infringement in the context of Hatch-Waxman) to see why.

I was wondering what other people think.

[mhgy]

How do you define the criteria for making patent law "better"? More patents upheld in litigation? Easier to invalidate "junk" patents? Lower litigation costs? Higher damages awards for patent infringement? More patents granted? Less patents granted? Etc. Patent attorneys have wildly varying views on each of these topics (see: Patentlyo comment sections), so it is impossible to answer your question without knowing what framework you are working from.

That said, I am agnostic between the parties vis a vis patent law. I see my role as being knowledge about and interpreting the rules that govern and surround the field of intellectual property and then advising my clients on a path to take in light of those rules. What the actual rules are is irrelevant to me.

[Robert K S]

In practice, most of our elected officials on both sides of the aisle have too little understanding of our patent system or its importance.  Who's the last Congressperson that ever applied for a patent?  Studied patent law?  Examined seriously the economic effects of patents?

At the moment, Reps. Rohrabacher of California, a Republican, and Kaptur of Ohio, a Democrat, are probably the most pro-patent legislators.

[Wolfcastle]

Well, in terms of USPTO Director appointments, I much prefer Obama's picks over Bush's picks.

[catalonia]

I would define "better for patent law" as

1. Appointing judges who are qualified legally and technically, and have a judicial outlook which does not either favor, or disfavor the idea of having patents in the first place, since no one really knows whether patent law is ultimately an economic benefit

2. Appointing USPTO Commissioners who are competent for the job, and who efficiently run the organization.

3. Passing useful patent related legislation.

Responding to the above comments, I once heard Rohrbacher speak when I was an examiner. Good speaker, although I walked away feeling like he liked the PTO primarily because of the money it provides congress. Also, for me, it is a bit eye-opening to read the Wikipedia article about Darrell Issa, the current Chairman of the House Subcommittee on Courts, Intellectual Property, and the Internet.

I agree about Obama's picks for Commissioner v Bush's. Also, while Obama was president, the most important patent legislation since 1952 was passed, although I have mixed feelings about the qualifications of some of his appointees to the CAFC.

Patent lawyers have a place in the legislative process, if they want it. Organizations like AIPLA have committees specifically for dealing with it.

[Robert K S]

have a judicial outlook which does not either favor, or disfavor the idea of having patents in the first place

Judicial appointees better favor "the idea of having patents", since Congress did in the Patent Act, and judges should not be activistically going above Congress.  Not to mention what's in our Constitution.

no one really knows whether patent law is ultimately an economic benefit

First, I think if you told the Fortune 500 companies you were wiping somewhere between a quarter and half the value off their books by eliminating their patents, they would be pretty upset.  Second, we don't see anything approaching the same creativity culture in countries with poor IP protections as we do in countries with strong IP protections.  Third, even if there was zero economic benefit, there is still a huge value to the public in terms of the dissemination and accumulation of practical, valuable knowledge, of which the juiciest part would otherwise be held instead as trade secret.

[catalonia]

The last time judges "favored" having patents, the CAFC turned the whole thing into a free for all, with the subsequent backlash by the Supreme Court. Judges should not favor, or disfavor having patents. They should just interpret the law in a neutral manner. That is the theory, anyway. What the Constitution says is another issue.

If you told the biotech or pharmaceutical industries we were going to abolish the patent system, they would rightfully go nuts. If you told this to IBM, Microsoft, and the likes, I don't know what they would say.

Books have been written about countries abolishing their patent systems with their gross GDP subsequently going up (notice I said subsequently, not consequently). The idea of people otherwise holding valuable information as a trade secret absent a patent system is the foundation on which the system is based, but whether this outweighs the huge costs the patent system inflicts is open to debate.

I know Learned Hand was not sure to his dying days, though he did testify in congress he thought there should be a patent system, but even then he did so reluctantly. I think it is a difficult question that depends on the times and what technology you are talking about. At any rate, it pays my bills.

[Robert K S]

Judges should not favor, or disfavor having patents. They should just interpret the law in a neutral manner.

Respectfully, I believe "interpreting the law in the neutral manner" is incompatible with a neutral or negative judicial stance on "the idea of having patents in the first place".  Section 102 of the Patent Act does begin, after all, with "A person shall be entitled to a patent unless..."

As to IBM and Microsoft, both of these companies have invested substantially in patents and would likely lose most of their value overnight if their patent portfolios were wiped out.  Can large software companies still operate without patents?  I think it would be foreseeable that they would be impelled to make all their core technologies trade secrets and would have to do everything they could inhibit reverse engineering.  There would be a lot fewer cases of customers processing their data on their own machines.  Source data would go up into a corporate-controlled cloud and the results would be transmitted back.

Books have been written about countries abolishing their patent systems with their gross GDP subsequently going up (notice I said subsequently, not consequently).

If you know which books or which countries, I'd be interested.

[catalonia]

Judges should not favor, or disfavor having patents. They should just interpret the law in a neutral manner.

Respectfully, I believe "interpreting the law in the neutral manner" is incompatible with a neutral or negative judicial stance on "the idea of having patents in the first place".  Section 102 of the Patent Act does begin, after all, with "A person shall be entitled to a patent unless..."

In your context, I believe that judges should be fair and neutral in interpreting the evidence presented before them as to whether the "unless" exception arises. Actually, they should be fair in any context. In the context in which I am speaking, history has shown that in times of economic prosperity, like the 1920's or the tech boom of the early 2000's, society, including the judicial branch, views the patent system as an economic lever to be pulled in order to juice the system. And when the inevitable fall comes, like it did in 1929, people view the patent system as an evil, and judges tend to invalidate more patents. That is a fact, and is was a pet peeve of Learned hand, and you can see discussions of it throughout his decisions. I could write pages about why I think this is wrong, but I will only state that judges should not try to be economists in this sense, since at the very least nobody seems to understand the relationship between the patent system and things like economics, or antitrust laws.

Anyway, the first time I saw a cite to the idea of a country abolishing its patent laws was when I was reading Merges and Nelson's casebook on patent law. the book "Industrialization Without National Patents" by Eric Schiff discusses this. There is another book, but I cannot remember the author's name. Also, I believe that Harry Dutton's book on the patent system during the industrial revolution discusses this.