I know there are more important things going on in the world, but I really had to stifle a giggle at the latest attempt to blame Jimmy Carter for every conceivable ill of the pre-Reagan world. Here is Gordon Crovitz in the Wall Street Journal today:
Jimmy Carter’s Costly Patent Mistake
Today’s patent mess can be traced to a miscalculation by Jimmy Carter, who thought granting more patents would help overcome economic stagnation. In 1979, his Domestic Policy Review on Industrial Innovation proposed a new Federal Circuit Court of Appeals, which Congress created in 1982. Its first judge explained: “The court was formed for one need, to recover the value of the patent system as an incentive to industry.” The country got more patents—at what has turned out to be a huge cost. The number of patents has quadrupled, to more than 275,000 a year.
Jeebus. Legal scholars spent the entire decade of the 70s arguing about this. Under the old system, different appellate circuits issued different rulings on patents, and it was the business community that was mostly unhappy about this. Several commissions recommended plans for a more uniform and efficient system, including one drafted by Carter’s Department of Justice. It never went anywhere, but business leaders kept pressing, and Congress reintroduced court reform legislation in 1981, which was signed by Ronald Reagan a year later. It’s absurd to give Carter more than a footnote in this history.
However, Crovitz gets this part right:
[The new] Federal Circuit approved patents for software, which now account for most of the patents granted in the U.S.—and for most of the litigation….Until the court changed the rules, there hadn’t been patents for algorithms and software. Ideas alone aren’t supposed to be patentable. In a case last year involving medical tests, the U.S. Supreme Court observed that neither Archimedes nor Einstein could have patented their theories.
Actually, to give them their due, the new court held out against software patents for quite a while. Eventually, though, contradictions kept piling up, and in the mid-90s they essentially threw in the towel and approved the granting of pure software patents. This is hardly the whole story, though. The Supreme Court could have overruled them. The patent office could have fought back. The president could have offered new legislation. Congress could have acted.
None of them did. The software industry wanted software patents, and they got them. Big business won the day, as they usually do. But I guess that’s not a headline the Journal editorial page is interested in.
Hidden in this story, however, is the key fact that demolishes the argument in favor of software patents: “the mid-90s.” Before that, software patents were rare or nonexistent. And guess what: The era from 1950 through 1995 featured one of the most innovative and fruitful tech explosions in history. Billions of lines of software were produced, the world was transformed, and it was all done without patent protection.
So why do we need them now?