The Agenda

Patent Reform and the Right

Tim Lee of The Switch points to a new anti-patent-troll policy brief from the Manhattan Institute’s Center for Legal Policy as an indication that conservatives and libertarians are turning against software patents: 

Some scholars have been drawing a contrast between good pharmaceutical patents and bad software patents for years. But until recently, the distinction tended to get lost in mainstream debates. When Congress overhauled the patent system with the 2011 America Invents Act, it focused on esoteric procedural changes like switching from “first to invent” rule for granting inventions to a “first to file” rule. Reining in software patents wasn’t even on the agenda.

Now there’s a growing awareness that the patent crisis is really a software patent crisis. Trolls are suing people over scanner, Wi-Fi, and mobile app patents, not for chemical or mechanical patents. While the Manhattan Institute stops short of advocating the elimination of software patents, it urges Congress to “clarify the definition of ‘processes’ underlying such patents,” which would at least nix the most egregious ones.

Ultimately, the details of the paper are less important than who is publishing it. The Manhattan Institute is a prominent think tank with deep ties to conservative elites and the business community. The study’s publication is another sign that the political right is paying attention to the patent system’s growing dysfunction. And given that the Obama administration has endorsed a slate of patent reforms similar to those the Manhattan Institute favors, there’s a real chance of change actually happening.

And Conor Friedersdorf of The Atlantic identifies patent reform as one of several policy interventions libertarian-minded voters might embrace to redress certain entrenched inequalities. Assuming GOP elected officials really do embrace patent reform, as seems reasonably likely, one wonders if this reflects a larger willingness to embrace new anti-incumbent policy initiatives or if it merely reflects the fact that Republican lawmakers aren’t as beholden to advocates of software patents as they are to, say, the doctors’ cartel. My guess is that both factors play a role.

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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