The Supreme Court agrees: patents give you superpowers!

In a witty but unsurprising Supreme Court opinion, Justice Kagan gave us what will likely become every patent attorney’s favorite Court quote:

Patents endow their holders with certain superpowers, but only for a limited time, In crafting the patent laws, Congress struck a balance between fostering innovation and ensuring public access to discoveries. While a patent lasts, the patentee possesses exclusive rights to the patented article—rights he may sell or license for royalty payments if he so chooses. But a patent typically expires 20 years from the day the application for it was filed. And when the patent expires, the patentee’s prerogatives expire too, and the right to make or use the article, free from all restriction, passes to the public.

Kimble v. Marvel Entertainment, LLC., 576 U.S. ___ (2015) (PDF) (emphasis added, internal citations omitted).

    The case itself focused on the “limited time” aspect of the superpowers a patent grants. United States Patent Number 5,072,856 covered a device that let users play at shooting spider webs from their hands (like a certain superhero), but even such a mighty patent could not command royalties after it expired. This outcome was hardly surprising, since the Supreme Court had said the same thing fifty some-odd years ago in Brulotte v. Thys Co., 379 U.S. 29 (1964). While three Justices (Alito, Roberts, and Thomas) did dissent, overturning Supreme Court precedent doesn’t happen very often, especially when the precedent involves statutory issues rather than Constitutional issues.

    Affirming old precedent isn’t all that exciting, but comparing patents to some elixir that grants temporary superpowers is both fun and apt. Patent’s grant powers well beyond the norm in our free market economy, but even if you can imbibe of the potion that grants those powers, the effects wear off—and those powers sometimes come at a high price. 

    With a patent, you can sue your competitors and get a court order forcing those competitors to stop competing under penalty of being held in contempt of court. The court can also force them to pay damages for competing in the first place. With a patent in hand, you can strike a deal with your competitors where they pay you for the privilege of conducting their business. Now that is a superpower! Shooting sticky webs out of your hands is great if you want to climb walls or something, but if you want to make money patents are probably more useful. 

    The problem with patents, as Justice Kagan noted, is that the superpowers they grant wear off. Another problem with patents (that Justice Kagan didn’t have to reach) is that just like a superhero has to fight supervillains with their own superpowers, your competitors in business may own their own patents—resulting in a battle of superpowers. And, just like comic book superpowers often come with a great cost, getting that patent in the first place isn’t an easy or cheap proposition, as extracting the potent patent elixir from the Patent Office is a laborious process.

    Are the superpowers a patent gives worth the cost? That depends upon what use you have for the power and what they will cost you. Even if the cost is worth it, though, you have to realize that the powers don’t last forever.

Last Week’s Patent Problems Today

John Oliver skewering the patent system in general and ‘patent trolls’ in particular on his HBO show, Last Week Tonight, is the sort of thing that happens when the patent system matters. I didn’t watch Sunday’s show when it aired, but my news feeds and family and friends were quick to recommend it to me after the fact, so I gave it a watch (or two).

Oliver made one particularly excellent point: the explosion of patents of dubious quality when a new technological field develops is nothing new. I appreciated his comparison of software patents to railroad patents from long ago. The historical perspective from a commentator with (presumably) little prior knowledge of the patent system is not something I expected, but I certainly appreciated it.

I just wish he’d gone a little further with the historical perspective.

Low-grade railroad patents allowed before the Patent Office figured out how to examine those types of applications no longer bedevil us. Those patents have long since expired, and today’s examiners certainly know how to approach patent applications directed to railroad technology. I’m sure that in-house patent counsel at US railroads and their suppliers could point me to a few recent bad patents in their industry, but there aren't enough bad railroad patents in force to amount to a major societal problem anymore. Railroad patents may have been a problem once, but the Patent Office and the rest of the patent law community has long since learned how to deal with those applications.

We are still very much in the learning curve for software patents. Even if we can agree that bad software patents are currently a societal problem (although many will disagree as to how large of a problem those patents are), a longer perspective is in order here. 

Most of my patent prosecution colleagues and my own experience would tell you the heyday of easy-to-get broadly enforceable software patents has been over for years. That doesn’t mean the societal problems caused by dodgy software patents are over. Patents last more or less twenty years from the time they are filed, so patents issued from applications filed in 1995 are with us for a little while yet, and patents issued from applications filed in 2000 will be with us for several more years. Fortunately, my non-scientific and totally subjective evaluation of the quality of software patents is that the Patent Office has gotten more restrictive in its allowances every year I have been practicing. On average, a software patent issued from an application filed in 2000 will be narrower than a patent issued from an application filed in 1995; a patent issued from an application filed in 2005 will be narrower yet; software patents issued from applications filed in 2010 and (I suspect) 2015 will be even narrower.

The movement of the Patent Office (as well as the courts and congress) along the learning curve of software patents matters for policy makers, inventors, and patent attorneys. For policy makers, further tightening the standards of patentability for applications filed today won’t obviate infringement suits for patents issued years ago—but even if nothing else is done, those patents will expire. For inventors, obtaining a patent on your software like the patents you hear about in the news probably isn’t going to happen—but you still might be able to get a focused patent that helps your business succeed. For us patent attorneys, we need to realize that we and the rest of the patent system are still moving along the learning curve—and not be afraid to admit that we can’t make guarantees about outcomes.

Sure, the patent system has flaws, and for John Oliver and other commentators to point them out isn’t only fair, it’s appreciated. We need to be mindful of what’s really happening in the patent system, though, so that we can fix the problems we actually have. Otherwise, we’ll wind up fixing the last decade’s problems today.

Different Kinds of Patent Reform

There’s more than one way to “reform” patent law. I use the scare quotes because one person’s needed reform to enable innovation is another person’s blow that crushes innovation. I’ll drop the quotes and just stipulate that any change to the substance or procedure of patent law can be called reform.

One way to reform patent law is to pass legislation. Taking this approach, the Innovation Act of 2015 was recently introduced in Congress. Different participants in the patent system may have different opinions on the many proposals of the Innovation Act, but we all know about it. As far as patent-related news goes, the introduction of bipartisan legislation to amend the Patent Act is a big deal.

Another way to reform patent law is through the courts. Some cases receive extraordinary levels of reporting—the Alice decision from the US Supreme Court being a somewhat recent example—and other cases receive relatively little attention, but all of the court decisions impacting how patent law operates are publicly available, whether you care enough about patent law to read them or not.

Yet another option for reforming patent law reform is for the Patent Office to issue guidelines and rule changes. This approach probably will only be noticed by those who care about patent law rather intensely, but at least those who do can comment on the proposals and ultimately proceed in accordance with the new standard.

While the merits of any particular reform accomplished in any of the above fashions may be debated, at least those merits are debatable—a point which brings us to a final way to reform patent law: a secret program. The problem with a secret program (even when the very existence of the program ceases to be secret) is that, no matter how good (or bad) the program is on its merits, the lack of information about how the program operates leaves all of us wondering where to go next.

2015 appears destined to be another year of patent reform. Hopefully it will be the kind of reform we all can participate in, shape, or at least adapt to. That’s the best kind of patent reform.