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A lot of people in the tech industry are heaping hatred on U.S. patent law lately.The smartphone industry has been tangled with patent lawsuits, Google and Microsoft recently took some angry shots at each other over patents, and patent trolls are making life hellish for large and small companies alike.
In all the talk, it’s easy to lose sight of what patents actually do: they force inventors to disclose information about an invention to the public. In exchange, they get a time-limited monopoly on that invention.
The end result is MORE innovation, not less. There’s no reason to throw the whole system out just because we don’t like the way some companies are using it today.
Nilay Patel of The Verge has a long and interesting take on software patents, patent law, and trolls today. Some key takeaways:
- Patents force companies to think differently. When a patent like Google’s patent for PageRank (the basis of its search system) is published, that actually forces competitors to innovate — Microsoft can’t use the exact same idea in Bing so it has to think how to accomplish the same result in a different fashion, or add other features that make it better.
- Eventually, patents expire. Once that happens, these ideas enter the public domain, where other smart people can build new products and ideas on top of them.
- Trolls are classic capitalists. Trolls — or non-practicing entities in the nicer term — like Intellectual Ventures amass patents without actually building anything, and then use those patents to extract licensing fees (or lawsuit dollars) from companies doing the real work of inventing, building, and selling products. That’s annoying, but it’s also an outgrowth of the fact that patents are property, and can be bought and sold like any other form of property. Property law is very old — the precedents stretch back to the Magna Carta — and it’s risky to start messing with it just because we don’t like the way certain companies are capitalising on it.
- But trolls can be regulated. That said, there are ways to make trolling less profitable, like putting a cap on the amount they can win in a lawsuit or setting up statutory licensing rates for non-practicing entities.
- Software is just maths, but maths is hard. There’s been a long debate whether software should be patentable at all — without hardware, it’s just a series of maths formulas, and maths is an expression of natural law so shouldn’t be patentable. But after decades of back and forth in the courts, the Supreme Court has decided the other way. Patel argues that the work of arranging the mathematical formulas into a useful product is difficult, has value, and therefore should be subject to patents. It’s probably his weakest argument, but his point is that the line has to be drawn somewhere — and that’s the job of the patent office and courts to decide.
There are some valid counterarguments to Patel’s points.
For instance, a lot of software engineers find the disclosures in patent filings to be useless, and it’s possible to apply other forms of intellectual property protection (copyright, trade secrets) to software without travelling down the slippery slope toward patenting scientific discoveries rooted in natural law rather than actual inventions. (What’s next — patenting genes?)
Regardless, it’s a good primer on where U.S. patent law is today, how it got there, and how it might be fixable. Anybody interested in the patent debate should check it out.