Tonight, I suggest reading Professor Duffy In Favor of "Good Property-Defining Institutions" and Opposed to Bad Reforms. Professor Duffy is once again right and stands out from the crowd.
He starts by noting the America Medical Association opposition to patented medicines in the 19th century. Patented medicines weren't only bad, they were unethical! An AMA member, congressman, and head of a congressional committee "recommended as an important measure of reform legislation banning all patents on medicines." That sounds like what I am hearing about software inventions.
But as Professor Duffy notes we should be skeptical of sweeping reform: "Worrying about matters such as patent law’s obviousness doctrine has none of the flamboyance of a call to eliminate all software patents, but the targets of reform can be the same. Eli Dourado rightly criticizes Amazon’s 1-click patent as an example of a “low-quality software patent.” So have I—repeatedly. But the problem with the 1-click patent is not that it’s on software but that it’s “low-quality”—it’s trivial; it’s obvious. The right solution to such “low-quality software patents” is not to get rid of all software patents (low-quality and high-quality), but to do a better job of getting rid of all low-quality patents (software or not). That’s not a flashy “let’s-kill-all-the-software-patents” approach. It’s boring; it’s incremental. But if the goal really is to get “good property-defining institutions” rather than simply to abolish property rights across fields of innovation, such incremental, boring improvements are what’s needed."
Copyright © 2014 Robert Moll. All rights reserved.
