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April 20, 2006
The libertarian take on patent reform
I usually find Holman Jenkins' column in the Wall Street Journal amusing. And his take on patent reform "What's Good About Patent Wars" is no exception. He is clearly not in the "patents uber alles" camp:
The one property right not found in anybody's idea of natural law is the right to prevent someone from copying your idea, embodied in a book, piece of music or design for a gadget. It took a big, imaginative act of government to decide it would identify creators of valuable ideas and protect them, for some period, from being copycatted.
Somewhere, an Ayn Rand aficionado is losing sleep over this. Valuable ideas are exclusively valuable to their inventors at the discretion of bureaucrats. It's also a system that breeds conflict and court fights, a feature thrust into the public eye recently by two unusual cases, involving BlackBerry and eBay. These lawsuits are being treated as wake-up calls for patent reform.
. . .
What's the lesson here for "patent reform"? Refer back to paragraph three -- patents are a kind of property not merely protected by government but created by public policy. And history suggests that things go best when patent rights are strong, but not too strong.
He has gotten the problem right. So what is his solution:
If the Supreme Court uses the invitations presented by eBay and Metabolite to tweak the system back in a more serviceable direction, Congress could chuck the idea of legislating, always an invitation to make matters worse.
An interesting idea - let the Court handle it. Yes, Congress could easily muck things up even more. And Yes, the Supreme Court cases will resolve some of the problems. There are even some who have said if we could just rein in a District Court that has misinterpreted the Supreme Court's earlier case on what could be patented, every thing would be fine. But, as I understand it not every issue of concern is before the Court. There are still evolving issues - such as standards versus patents and whether a one-size fits all patent system works. So Congress may still have an important role to play.
And aren't conservatives supposed to be against activist judges?
Posted by Ken Jarboe at April 20, 2006 8:22 AM
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