In this morning's WSJ, Gordon Crovitz's column is headed "Jimmy Carter's Costly Patent Mistake." Now, Jimmy Carter was and is an embarrassment, a terrible leader, a danger to America and the world, morally bankrupt, and a generally bad human being. So it makes me rather unhappy to rise to his defense. In this case, however, Crovitz (or at least his headline writer) is being unjust.
The gist of Crovitz's article is fairly straightforward. In the late 1970s, Carter commissioned a blue ribbon panel to inquire into that decade's economic malaise. One of the commission's primary recommendations was the reinvigoration and strengthening of patent law. One of the steps recommended towards that goal was the creation of a federal appellate court that unified patent law. That recommendation gave birth--in 1982--to the Court of Appeals for the Federal Circuit (CAFC). In the 1990s, a series of CAFC decisions confirmed that software, algorithms, and business methods could qualify for patent protection. Those rulings enabled to a plethora of bad patents, litigation strategies that deploy bad patents, and economic challenges that emanate from strategic patent litigation.
...and so, you see, it's all Carter's fault. QED.
Now for a couple of observations in defense of bad man attacked by an excellent columnist.
First, I am thrilled to see Crovitz tying the modern patent era back to the Carter years. I explained the connection in detail in The Secret Circuit, and I have been talking about it for years. Still, few people know it and most gloss over the significance of the period to our modern patent system. Perhaps more to the point, I sent Crovitz a copy of the book several years ago, and I know that he's read it because he has cited it. So I would like to claim at least a little credit for this morning's column.
But by "blaming" Carter, and by labeling the commission's patent recommendations a "mistake," Crovitz does the American economy a disservice. The commission's primary observation was that, at the time, the U.S. led the world in innovation but lagged in commercialization. The reinvigoration of the patent system was a critical component in reversing that slide. And it worked! Spectacularly! For the first two decades of the modern patent era, the American economy soared. American innovation and commercialization became the envy of the world.
In fact, the biggest problems that we face today--as I noted nearly seven years ago in The Secret Circuit, when they were not quite as acute and garnered far less attention--derive not from poor policy prescription, but rather from policy sclerosis. Thirty-plus years ago, Congress put the patent system into "strengthen" mode, and left it there. No policy can possibly become stronger forever without passing the point of optimality. The patent system today suffers at the hands of both public and private actors. Our public actors have not sought to realign it with economic needs for more than three decades. And private actors have found numerous loopholes and pressure points.
In this way, the patent system is really a microcosm of our entire regulatory state. We are strangling ourselves in red tape--and we make the situation worse year by year. With only a few minor exceptions, the entire government has been in "strengthen" mode since 1932.
So by all means yes, let's revisit the questions concerning what we want our patent system to do. But let's not pretend that patent problems are more than mere footnotes in understanding what ails the modern economy.