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Donna Wentworth
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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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.

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