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December 4, 2012

What, Exactly, Is "The Patent Problem"

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Posted by Alan Wexelblat

Last month, Steven Levy had an extensive piece in WIRED with the title "The Patent Problem." Levy is a long-time tech journalist who's probably best known for his in-depth books on tech and culture, starting with his Hackers up through last year's paean to Google called In the Plex.

To my knowledge, Levy hasn't written much about patents or IP before, but he brings his exhaustive attention to bear in this article. It's long, and I won't try to summarize it - you should read the original. Levy doesn't fall into the trap of assuming there is a single problem with patents, despite the article's title, that would be amenable to a single solution. He touches on several things including the changes to what can be patented (so-called process patents), the fact that companies are deliberately abusing and overwhelming the USPTO with crap, and particularly the proliferation of entities that view patents as weapons or money-making machines. All of these factors have combined to create a potentially very profitable business model around what are called (politely) "non-patenting entities". These companies make no product, but have a business around owning patents and suing people who are claimed to infringe them.

The less-polite name for these NPEs is 'patent trolls' and trolling is a major focus of Levy's article. He notes that NPE-originated litigation is increasing rapidly, that courts have often favored existing patents with a presumption of validity, and that NPEs can engage in a variety of asymmetric warfare. Since the NPE makes no product it can't be counter-sued. The best that a defendant can muster would be a challenge to the patent's validity or scope.

Levy deploys a reasonable set of statistics to back up his proposition, though I would have liked to see more. He does admit that it's hard to distinguish a troll from a legitimate NPE that is protecting the interests of companies who license their portfolios. Certain trolls have grabbed a lot of headline attention, but that just makes them bad examples, not necessarily a valid majority or trend. That said, I think the key point of the article can be soundbit:

Instead of promoting innovation, patents are used as a weapon to stop it.

This is not a new insight - I've remarked previously on the idea that any patent can be used offensively as well as defensively - and I like how Levy formulates it. There's a difference we all recognize socially between "this competitor is doing something infringing that is harming my business and I must stop them" and "I now own a bunch of patents so someone is going to pay".

This difference goes back again to the language in the Constitution that allowed Congress to establish patents in the first place. I've been reading more in Copyright Unbalanced and one of the points that the authors in that book make repeatedly is that there is nothing natural or required about patents. We've had them for so long it's not surprising that people think they're a necessity, but in fact they were invented for the US as part of its founding documents not because anyone felt that individuals or corporations needed to enrich themselves, but because it was felt that having government-granted monopolies of this sort would lead to a better society.

What Levy is saying, I think, is that present practices around patents are directly attacking that feeling, which is still widely shared today. Unfortunately he has no more solutions to the problem than others who have pointed it out before. I continue to believe that focusing on the courts side of things is the wrong way to go. By the time a patent winds up in court it's too late to do much but apply another band-aid. What's needed is reform at the application and issuance stages. Not to put too fine a point on it: if you keep the crap out of the system, then the system ought to work better.

Comments (5) + TrackBacks (0) | Category: Big Thoughts


1. Crosbie Fitch on December 4, 2012 7:17 PM writes...

"because it was felt that having government-granted monopolies of this sort would lead to a better society."

You've got to believe that haven't you?

You couldn't possibly believe that it was simply because Madison had some pals who quite fancied some monopoly profits, eh?

Presumably, lobbying never happened in the 18th century. All statesmen were pure as the driven snow, altruistic philanthropists through & through...

Half the problem is, that even those who smell something rotten about them today, can't imagine these monopolies were fishy to begin with.

Where is your evidence that The Framers believed monopolies would be good for society?

Madison & his cronies believed monopolies would be good for them, but that's not the same thing.

Madison said that copyright had been solemnly adjudged to be a common law right (which was an egregious misdirection given the opposite was the case at the time) and that patent must be one too (given it's little different from copyright). Thus, to secure such common law rights was all that Congress was empowered to do. Madison knew it didn't matter, because it was all he/Congress needed to assume the power to grant the monopolies - because so many people at the time would assume such privileges constituted the securing of common law rights (not the abridgement of their hard won liberty).

It stank at the time, and Jefferson knew it. He made a last ditch attempt to persuade Madison to make the granting of monopolies explicit in the Bill of Rights (the more easily they could later be repealed), but failed.

And now everyone is indoctrinated to believe that prohibitions on cultural & technological exchange accelerate progress rather than impede it.


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2. Alan Wexelblat on December 5, 2012 1:17 PM writes...

I am not naive enough to believe that the privileged upper-class white men who wrote the Constitution were acting in a purely altruistic manner. However, I think it's a reasonably widely shared understanding that they were trying to form a more perfect union and building into it such principles as they saw leading to such a thing.

That, however, sort of misses the point. Whatever you think of the mens' motives, the language is as written. If we're not enforcing the language as written that's a problem more easily addressed than inferring what was really intended but not written down.

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3. Crosbie Fitch on December 5, 2012 3:26 PM writes...

Alan, you are right. The Constitution HAS to be read as it was written (per the language of the day) - not as we might like to prefer, any manner of things we'd argue the Framers 'wrote between the lines'.

Thus the canard that the Constitution empowered Congress to grant copyright is a modern litany. The clause people cite specifies nothing of the sort. People simply like to imagine it does.

I recommend you read my comments in this thread:

Permalink to Comment

4. Alan Wexelblat on December 6, 2012 1:49 PM writes...

I've read it and I regret to inform you that I agree with Mike Masnick's response to you.

(I should take a moment here to say that the delay in posting your comments is not unique to you. There's an ongoing server problem which often causes comments not to appear until I force a site rebuild.)

Permalink to Comment

5. Crosbie Fitch on December 6, 2012 5:19 PM writes...

While I find many such as Mike and yourself who allow beliefs to preclude engaging in this argument, I haven't yet found anyone with a decent counter-argument, and so my search continues...

I also look forward to the day your 'Remember Me?' function works.

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