> Patents aren't the goal, they're a tool congress can use. The goal is to promote the invention of useful things.
So you have to understand where patents fit into the big picture. For the last half century or so, legal theory has been heavily influenced by economics. Patents are a classic case of addressing an economic problem (the free rider problem), with a legal solution (property rights).
So it's not just that patents are a tool. Patents are property, and property is the tool.
> Academics would try to square the circle forever if funded and as you point out judges are funded. They don't have a stake in solving the problem, just looking clever.
Judges have no stake in looking clever either--unlike academics there is no publish or perish. They do care intensely about fashioning good law, however.
> Not knowing when to quit and endlessly looking for any way around a perceived kludge is usually the source of more kludges...
I don't really see how you get from point A to point B here. You avoid implementing the kludge so you don't have to live with the ramifications until the heat death of the universe (which is the average lifespan of kludges).
But patents aren't a solution, the free rider phenomenon is called progress - not a problem, and by legal you mean you're on the side that does it.
Of course it's profitable though, to declare other peoples' ideas to be your property, so if that's the metric it's a great success. The big picture is always the same.
> Judges have no stake in looking clever either--unlike academics there is no publish or perish.
Nearly all judges have stake in is looking clever. Being cited. You pointed out their lack of direct stake.
As for kludges, yes. Exactly. You rabidly avoid implementing a kludge for fear of supporting it forever and in doing so invariably produced worse solution and gotten less work done than if you'd focused on the goal instead of the details. Everyone has probably been there.
Patents are a hack to keep 'useful' companies afloat and reward 'real' inventors. I see the perceived needs for those, and might even agree, but using patents is like trying to fly with bricks and when it fails deciding you need more bricks.
> the free rider phenomenon is called progress - not a problem
In neo-classical economics, the free rider phenomenon is definitely a problem, not "progress." It is something that undermines economic efficiency.
Now, you can argue that it's not something that actually manifests in reality, and maybe you're right about that, maybe you're wrong. But I'm not presenting my worldview here, I'm explaining the intellectual context in which the existing patent regime has arisen. There are people who think of "sharing" as being conducive to economic well-being. That's not the neo-classical worldview. That worldview is, to a first approximation, trying to figure out how to turn everything into property so it can be bought and sold. Buying and selling is seen as conducive to economic well-being.
> Nearly all judges have stake in is looking clever. Being cited.
"Being cited" is not really a thing that judges strive for.
Do you know what really destroys economic efficiency? Well-meaning people handing out monopolies to things they don't understand and then creating laws, agencies, courts, and breeding specialized lawyers to navigate the mess - all taken from actual inventors.
> Buying and selling is seen as conducive to economic well-being.
Oh gosh no. Buying and selling might not work to your benefit. Far better to be the guy who labels everything for sale and sells it. Absolutely zero risk.
Which is why patents are a dream.
Further, that reasoning (make things property to stimulate the economy) is as obviously broken as breaking windows for economic growth. It only works in the short term while there's stuff to stick a price tag on, and it's only wildly profitable when it's other people's stuff.
So you have to understand where patents fit into the big picture. For the last half century or so, legal theory has been heavily influenced by economics. Patents are a classic case of addressing an economic problem (the free rider problem), with a legal solution (property rights).
So it's not just that patents are a tool. Patents are property, and property is the tool.
> Academics would try to square the circle forever if funded and as you point out judges are funded. They don't have a stake in solving the problem, just looking clever.
Judges have no stake in looking clever either--unlike academics there is no publish or perish. They do care intensely about fashioning good law, however.
> Not knowing when to quit and endlessly looking for any way around a perceived kludge is usually the source of more kludges...
I don't really see how you get from point A to point B here. You avoid implementing the kludge so you don't have to live with the ramifications until the heat death of the universe (which is the average lifespan of kludges).