Patently-O Liveblogs Posner/Epstein Debate on the Patent System

PatCon 3: Posner/Epstein Debate on the Patent System
Jason Rantanen
Patently-O
April 15, 2013

A Debate About the Patent System

The Honorable Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit
Professor Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law, and James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer, University of Chicago Law School

Moderated by Olivia Luk of Niro, Haller & Niro

For another perspective on this debate, check out Lisa Larrimore Ouellette's post over at Written Description.

Judge Posner: wrote "Why there are too many patents in America." 

Longstanding academic interest in intellectual property; since becoming a judge, he's volunteered to handle litigation at the district court, and for the last ten years he has done almost exclusively patent cases.  He's conducted bench trials, Daubert herings, claim construction, and so on.  He's prepared several cases for jury trial, but they all fizzled out before trial.

In his view, we all probably agree that patents should not be granted unless there's a significant invention that, unless patented, would not be developed at all or would be developed much later.  The reason is that a patent is a monopoly and a monopoly causes economic distortions.  Beyond that, the administration of a patent system is very costly.  The reason for this is that a patent right is very unlike a traditional property right.  An invention is an abstraction.  One of his cases involved a patent that had never actually been used to make any product, while the prior art that was being asserted had also never been used to make a product.  So there was an extreme abstraction of the invention involved.

Faculty: 
Richard A. Epstein
Faculty: 
Richard A. Posner