"There's a simple solution to every problem. And 99% of the time... it's wrong."
I once had the pleasure of studying under a well respected electrical engineering professor named Roger Wood, who once told our class this.
This quote has stuck with me through the years. Yes, complex problems typically do require complex solutions. For that matter, even simple problems sometimes require complex solutions (and here, when I refer to "simple problems," I mean "simple to define" rather than "simple to solve.")
United States Patent Law, as a solution to the public policy objective of "promoting innovation," is an incredibly complex solution. The Manual of Patent Examining Procedure currently contains over 1000 pages of substantive and procedural requirements. And that doesn't even scratch the U.S. Supreme Court and Federal Circuit patent law cases.
However, to answer the question of whether U.S. patent law is "over-regulated," we may initially need to ask: is our patent code unnecessarily complex?
First, we should recognize that complex solutions typically need to be nuanced enough to handle many (preferably: all) possible contingencies and exceptions. The more layers of gloss we can add to something, the more "finely tuned" we can make it. By contrast, "less crafting" typically means "less crafted."
Take, for example, the simplest form of legislation: having no legislation at all. If our public policy goal was to "promote innovation," then not having any patent laws at all would surely be the simplest legislative solution. That, however, would accomplish very little toward "promoting innovation." Granted, a certain level of discoveries and innovations would occur naturally in our economy without providing any extra government incentives, as you may have seen under mercantilism. But by and large, our policy objective would have not been satisfied. Were we to create a little more legislation -- for example, by allowing a Patent Office to issue patents, and by allowing the courts to enforce infringement actions -- we would still lack any standards for what must be included in a patent, and what must be proven in an infringement action. The more rules we create, the more exceptions we carve out, the more finely tuned we can make our system trace our public policy objectives. It is akin to carving out a statue from a block of marble. Before we start crafting, we already have an idealized vision of what the statue should look like. To reach our target, we need to really carve out the finer details.
Second, in patent law, as in other areas of law, we frequently have multiple public policy objectives running in parallel that need to be prioritized, or otherwise twin policy objectives that are at some level in tension with each other. For example, "We want to promote innovation... but we don't want to promote monopolies." As soon as there are competing public policy interests, that's when you start seeing the complexities run deeper.
So on the one hand, having simplicity just for simplicity's sake can erode, or fail to attain, public policy objectives that finely crafted legislation has already attained. Additionally, where multiple public policy interests are at stake, complexity inherently follows as a result of balancing competing interests. There is a certain sense that the law is complex because life is complex. Perhaps if life were simpler, the law could likewise be simpler.
On the other side of the coin, the more complex a law is, the more likely certain individuals and parties will benefit from its complexity -- and in many cases at the expense of others. Not everyone can afford to hire an army of tax advisers, accountants, and attorneys, so complexity at some level precludes certain participants who cannot afford to hire trained agents to navigate through its complexity. Thus, the complexity can breed a certain level of inequity.
At the same time, the less clear a particular law is, the less likely people are to take chances/risks, even when their proposed actions would ultimately wind up being legal and beneficial (or highly beneficial) to society. For example, suppose someone had this crazy, revolutionary idea for a new business, but they weren't sure whether their proposed business would be legal because the laws were complex. Without simple bright line rules defining what is legal and what is not legal, this person may decide not to pursue it out of the fear of potential legal liability. So in this sense, with complex laws, real wealth-generating opportunities for society wind up going unrealized.
There is also a psychological cost associated with complexity. If the complexity runs too deep, people may feel that they don't have any control of the system, and may even fear the system. And if too many systems in life are complex, life can feel chaotic. Simplicity therefore serves as a proxy for capacity to control. As they say, "knowledge is power," but since complexity makes systems more difficult/expensive to "know," knowledge comes at a premium that many people are unwilling or unable to pay. The converse of this statement is also true: "Lack of knowledge implies lack of power" - so when people are engaging a system they don't "know," they may therefore (justifiably) feel powerless.
At the end of the day, complex problems impose their own set of issues to society (inequity, unrealized wealth, lack of control/a psychological feeling of powerlessness). However, complex problems are often complex because life itself is complex, and if the former concerns are pressed for too vigorously, such complex problems run a very real risk of over-simplification. This can result in a system that partially or wholly fails to attain its intended objectives. This is actually true for any system, patent law being no exception.
I once had the pleasure of studying under a well respected electrical engineering professor named Roger Wood, who once told our class this.
This quote has stuck with me through the years. Yes, complex problems typically do require complex solutions. For that matter, even simple problems sometimes require complex solutions (and here, when I refer to "simple problems," I mean "simple to define" rather than "simple to solve.")
United States Patent Law, as a solution to the public policy objective of "promoting innovation," is an incredibly complex solution. The Manual of Patent Examining Procedure currently contains over 1000 pages of substantive and procedural requirements. And that doesn't even scratch the U.S. Supreme Court and Federal Circuit patent law cases.
However, to answer the question of whether U.S. patent law is "over-regulated," we may initially need to ask: is our patent code unnecessarily complex?
First, we should recognize that complex solutions typically need to be nuanced enough to handle many (preferably: all) possible contingencies and exceptions. The more layers of gloss we can add to something, the more "finely tuned" we can make it. By contrast, "less crafting" typically means "less crafted."
Take, for example, the simplest form of legislation: having no legislation at all. If our public policy goal was to "promote innovation," then not having any patent laws at all would surely be the simplest legislative solution. That, however, would accomplish very little toward "promoting innovation." Granted, a certain level of discoveries and innovations would occur naturally in our economy without providing any extra government incentives, as you may have seen under mercantilism. But by and large, our policy objective would have not been satisfied. Were we to create a little more legislation -- for example, by allowing a Patent Office to issue patents, and by allowing the courts to enforce infringement actions -- we would still lack any standards for what must be included in a patent, and what must be proven in an infringement action. The more rules we create, the more exceptions we carve out, the more finely tuned we can make our system trace our public policy objectives. It is akin to carving out a statue from a block of marble. Before we start crafting, we already have an idealized vision of what the statue should look like. To reach our target, we need to really carve out the finer details.
Second, in patent law, as in other areas of law, we frequently have multiple public policy objectives running in parallel that need to be prioritized, or otherwise twin policy objectives that are at some level in tension with each other. For example, "We want to promote innovation... but we don't want to promote monopolies." As soon as there are competing public policy interests, that's when you start seeing the complexities run deeper.
So on the one hand, having simplicity just for simplicity's sake can erode, or fail to attain, public policy objectives that finely crafted legislation has already attained. Additionally, where multiple public policy interests are at stake, complexity inherently follows as a result of balancing competing interests. There is a certain sense that the law is complex because life is complex. Perhaps if life were simpler, the law could likewise be simpler.
On the other side of the coin, the more complex a law is, the more likely certain individuals and parties will benefit from its complexity -- and in many cases at the expense of others. Not everyone can afford to hire an army of tax advisers, accountants, and attorneys, so complexity at some level precludes certain participants who cannot afford to hire trained agents to navigate through its complexity. Thus, the complexity can breed a certain level of inequity.
At the same time, the less clear a particular law is, the less likely people are to take chances/risks, even when their proposed actions would ultimately wind up being legal and beneficial (or highly beneficial) to society. For example, suppose someone had this crazy, revolutionary idea for a new business, but they weren't sure whether their proposed business would be legal because the laws were complex. Without simple bright line rules defining what is legal and what is not legal, this person may decide not to pursue it out of the fear of potential legal liability. So in this sense, with complex laws, real wealth-generating opportunities for society wind up going unrealized.
There is also a psychological cost associated with complexity. If the complexity runs too deep, people may feel that they don't have any control of the system, and may even fear the system. And if too many systems in life are complex, life can feel chaotic. Simplicity therefore serves as a proxy for capacity to control. As they say, "knowledge is power," but since complexity makes systems more difficult/expensive to "know," knowledge comes at a premium that many people are unwilling or unable to pay. The converse of this statement is also true: "Lack of knowledge implies lack of power" - so when people are engaging a system they don't "know," they may therefore (justifiably) feel powerless.
At the end of the day, complex problems impose their own set of issues to society (inequity, unrealized wealth, lack of control/a psychological feeling of powerlessness). However, complex problems are often complex because life itself is complex, and if the former concerns are pressed for too vigorously, such complex problems run a very real risk of over-simplification. This can result in a system that partially or wholly fails to attain its intended objectives. This is actually true for any system, patent law being no exception.
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