Our patent system failings

Throughout history, anytime someone had a great idea, there was someone else around to steal it.  That is, if they knew about it.  Many ideas were therefore kept secret through the ages.  And even today, ideas and knowledge, like the formulations to give glassmakers those special great colors, are kept secret.  But, despite the attempts to keep them secret, sometimes they leaked out, anyway.  Then it was hard to prove that someone else stole it, because a claim to have invented it independently is hard to refute.

The people wanted to have use of those ideas and needed a way to convince the makers of those ideas to offer them up to the public.  The term patent means “to lay open” from the Latin word “patere”.  The first known patents were around 500 BC and offered an encouragement to lay open the discovery in exchange for a secured profit for a year.  The first English patent was granted for the making of colored glass, for 20 years.  The first patent in North America was issued in 1790 under the Patent Act of the same year.

It has normally been accepted that an inventor may use his own inventions.  That was a natural right.  Patents were the exception, which granted the right to exclude others from the invention, for a period of time, in exchange for the invention to be made open to all.  One obvious reason for it to be open was that if others were to be excluded from using it, they needed to know what not to do.  But it was also to be open so that after the period in which the inventor has exclusive rights, everyone can use it freely, and it will not be a secret.

So it is the government that issues the right of exclusivity for the benefit of the people (and nation).  It’s a tradeoff.  In exchange for encouraging the inventor to “lay open” the invention (the benefit), the government takes away the rights of others who might have also invented the same thing, for some time (the exclusion period) and gives it to the first inventor.

While not perfect, this has generally worked well in history.  It discouraged trade secrecy and encouraged efforts to come up with new ideas and innovation.  The exchange worked well because both inventors and the nation benefitted.  It encouraged the pursuit of innovation and invention in times when most people were not educated enough to do these things.

Things change.

Today we have a much more educated population.  Millions have the education level that lets them design and engineer an idea for something new.  Computers have greatly expanded that capability by making it far less expensive for an idea to be implemented.  Computers, and the ways we interconnect and use them, have also created the grounding for a vast number of new ideas because of so many ways they can be used.

But there is a problem here.  There are so many who can do the innovations in many technical disciplines, especially in computer software, that fewer and fewer ideas are those which we would have to do without if people were not encouraged.  Most of the ideas are small pieces.  They get used in large complex systems.  The encouragement of these small ideas was nothing more than just to get the bigger job done.  We don’t need the exclusivity that takes away the rights of the second inventor to encourage the first inventor to invent it.  We don’t need the issuance of a patent for these small ideas to come about.  We (the people) do not benefit at all from granting exclusivity to the first inventor in these smaller inventions.

A big idea, that takes some combination of genius, time, and money, to come up with, and invent, is something we all can benefit from.  So patent exclusivity is still a process we need to have.  But we need to make better judgments on this, because granting exclusivity to smaller ideas, which did not require the genius, or time, or money, is needlessly infringing on the natural right of any inventor to use his own ideas.

There is that lingering problem that someone who does not come up with the idea at all can steal it.  But for small ideas, that people educated in the related field could come up with, anyway, when/if faced with the need, it is nearly impossible to distinguish the truth.  But if we already have thousands of like inventions by those who can, the effect of those who would just use the idea taken from one of those thousands is negligible.  Arguably, it is just not worth the effort to eliminate a few users from the many makers.

Today.

We have a government system to issue patents.  Supposedly, this is all for our benefit.  Unfortunately, the vast majority of patents issued (what is issued is the exclusivity since if nothing is issued, every inventor retains the natual right to use their own inventions) by the government (the United States Patent and Trademark Office, the European Patent Office, etc) are for these small inventions.  The big inventions do not get lost by any means.  But the overwhelming number are small ideas.  We the people would benefit from these small ideas even if these patent offices did not exist, because the would be invented, anyway.  And almost all of them would be in the open in some way (e.g. trade sceret could not work).

We are not benefitting from most of these patents.  While it might seem the businesses are benefitting by the unmerited exclusivity grant they receive, the real truth is that they are being hurt by the faulty patent system just as much.  They have to deal with it by signing huge deals to exchange rights in large patent portfolios.  Usually these deals are even trades, at least among similarly sized corporations.  Where they are not is when there was some patent lawsuit (to enforce the exclusivity) award.

This process hurts the nation in a number of ways.  The costs of these lawsuits is a part of the damage.  But an even greater damage is that the newest and most innovative ideas, which typically come from small businesses and entrepreneurial startups, gets locked out.  A similar damage comes from those who benefit financially from inventions they created, or were assigned (a transfer to another party, usually in exchange for compensation like money), which are nowhere near the value they get (which is essentially zero for the myriad of small ideas for every great invention).

This is not a “software patents” issue.  But it can be easily be confused because software is something that makes for so many of these small ideas of no value.  Non-software ideas that are small ideas might be fewer in number, but they do exist.  We should not be calling this is a “software patent problem”.  We should be calling this a “patent problem”.  Even the big great inventions that justify the issuance of a patent exclusivity can be implemented in software.  And many of the small ideas can be implemented in hardware, too.

What we need is a patent system that grants patent exclusivity only for the big and great inventions that, were it not for the existance of this process, and the balance of exclusivity for overall benefit to society, would not be invented, or might be held in trade secrecy.

We need a better patent application examination process that rejects those ideas and inventions that we would benefit from, anyway (because someone else is probably already inventing it, or will invent it, or already has invented it).  We only have so many trivial small ideas being sent in to the “patent office” because so many of them will be approved, anyway.  They (applicants) do it just because they can.  They do it, also, because it adds value to the patent portfolio they have to use to trade with to get other patent rights.

All technology corporations have to do this because all the rest of them are doing it.  And this is all happening because our government just lets it happen.

Too many people still think that when a patent is issued that is a good thing.  It’s not.  A patent is a grant of exclusivity that takes away the natural right of other inventors to their inventions.  In most cases that is not justified because there is no benefit acquired by it.  The taking of property by the government (through its grant of exclusivity it does so) should never be done lightly.  Even in emminent domain, the taking is required to be compensated for (though that might not always be perfect).  But patent exclusivity never compensates the owners of the right to use their own inventions.  This is not something to be done trivially.

This problem persists because so few people really understand these things.  They don’t understand that patents are being granted mostly for trivial ideas.  They don’t understand that we will still benefit from these trivial ideas, anyway, even without a patent.  And they lump the small ideas in with the big great inventions.

We will benefit more by allowing innovations of the more complex technological ideas we see today, to be unimpeded by the countless small ideas they consist of.  We will benefit by allowing more businesses to innovate without the fear of being sued into oblivion over a small piece of software code that most any programmer could have come up with in just a few minutes to solve a little problem.  And even big corporations will benefit by not having to deal with all those details all the time just to be sure their deeper pockets are protected.  All of us will benefit by the resulting technology.

What is needed is a patent examination and decision process that focuses on this particular need.  Currently it appears to be nothing more than checking to see if the patent is a duplicate (reject) or not (accept), and that all the i’s are dotted and all the t’s are crossed, and the fees have been paid.  This process should also limit fees to actual costs imposed by an application, to discourge the process from considering it as a revenue stream.  And eventually, this will be government downsizing as businesses and inventors learn to not waste time with small ideas.

And we need it yesterday.

One of the many patent lawsuits ongoing is Yahoo suing Facebook, filed on March 12, 2012.  In this lawsuit Yahoo is making a basic claim for pretty much the whole social networking model.  ars technica has a pretty good rundown on the patent specifics.  To me, these patents look like trivial things overinflated by lawyers who prepared the paperwork.  Yet under our existing system, Facebooks is likely, technically, infringing, even though I very much doubt that Facebook programmers were scouring Yahoo’s sites for what and how to make a social site.

Technology entrepreneur Mark Cuban has posted in his widely read blog about this particular lawsuit.  While he sides very clearly against the bad patent system we have, faced with the fact that this lawsuit is working under that bad system, he says that a big Yahoo win that would crush or cripple Facebook might well be the thing that gets enough people thinking about this to do something about it.  Maybe we’ll see an Occupy Patent Office movement?  Or maybe a Patent System Spring?  Mark makes it clear we can’t expect Congress to fix this on their own.

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One Response to Our patent system failings

  1. Interesting read! You are right, I am sure there are so many people who have created a website and then someone else stole the idea and are making tons of money. That is not right. You are correct “Congress cannot fix this on their own.” Oh yea, and I hate fb.

    Good Read!

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