Too Many Patents as Bad as Too Few

NonSoftAntiCurve writes "Forbes.com has an interesting article about how too many patents are as bad as too few when it comes to incentives for innovation. 'The tension between the patent as a way to stimulate invention and the patent as a weapon against legitimate competition is inherent in the system.' There is a scary example of how this plays out in practice."

The Supreme Court Agrees

[User 956]

From The Supreme Court:

It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).

It certainly appears from this Supreme Court opinion, written over a century ago, that the US patent office was already out of control. Sad to say, things have only gotten worse. Thanks largely to the League for Programming Freedom (yes, I'm a member), software patents have gotten at least some of the notoriety they deserve. But the more patents I read, the more I come to the conclusion that things are just as bad in the more traditional hardware areas. It seems that every day somebody finds a patent that just makes everyone's jaws drop open in utter astonishment. Here's one I just discovered: US patent 5,443,036 covers the use of a laser pointer in playing with a cat. Check it out; this is not a joke, unless you consider (as I do) the entire US patent system to be one very sick joke.

To their credit, in 1994 the Patent Office put out a call for comments on "obviousness" standards for patents, asking if perhaps they have been inappropriately lowered. (Is the Pope Polish? Are your taxes too high? Does a bear...well, you know.) Here are the comments I filed in response. Naturally, they were ignored.

Recently a Slashdot reader hit on a brilliant analogy that ties it all together for me, and I'm not even a bearded linux hippie: patents, he said, are merely a form of industrial pollution. After all, both pollution and patents are economic externalities that can enrich individuals or companies at the expense of society as a whole. And both are often defended as economic necessities. At one time, society celebrated the belching black clouds of smoke and soot from steam locomotives, power plants and steel mills as signs of progress and economic prosperity, but this changed. I fervently hope that I live to see a similar sea change in public attitudes toward the patent system.

Re:Too Many Patents, Like this one on the Wheel

[Anonymous Crowhead]

When you apply for a patent, you start with a very broad claim. That way, if and when it is rejected, you narrow your claim until it gets accepted. You always start with as much as possible so you can narrow it down without adding anything.

My company just filed a patent for our product and the first claim pretty much comes down to: "Using a computer with a database to analyze scientific data." Of course it will get rejected. Problem is, sometimes claims like this make it through.

Re:Well Duh...

[Anonymous Coward]

software patent rights are 100% commensurate with open code. The invention is not the only thing a patent rewards, it is also the disclosure. The ideas behind patented software are open to the public, and are documented for the first time in the application. If you can find the idea somewhere else with an earlier date the patent is invalid. However, the term (20yrs) is too long for the pace of innovation, yet it is not nearly as bad as copyright protection's whopping 75yrs.

The Tale is True

[youngsd]

Before coming to my senses, I was a patent attorney. The story described in the article where IBM was on a shakedown mission rings true. I have seen both IBM and Lucent use exactly this technique many times (including with clients of mine).

They don't really mind when you show them that your client doesn't infringe. They are perfectly willing to go get another bunch of patents and make you go through those. Understand what is going on here: the patent attorneys take a lot of time going through all these patents to show that they don't apply. Lawyers are expensive -- eventually the client realizes that IBM or Lucent isn't going away, and they pay up. Mind you, in all of the cases I have direct knowledge of, there was never any reason to believe that any of the patents were infringed. They seemed to be a random assortment that were generally in the same technical field as the victim company. But the result is always the same -- a payoff to the 800 pound gorilla.

It is sick, but true.

By the way, the author of the article used to work at the firm where I got my start (Fenwick & West). He got booted for being too much of an asshole -- and among lawyers, that is saying a lot. Wired did a cover story on him back around '97.

-Steve