Open up any news related site and the odds of reading about another frivolous ass lawsuit are about the same as looking outside and spotting several idiots (especially if you're near a Best Buy). This is a common in regards to insanely stupid civil affairs at is with the technology sector.
Let's be brutally honest though, the only reason why this crap happens is only because the legal infrastructure in this country is hopelessly (and I hope not on purpose) out of touch and out of date. The USPTO is about as sophisticated and up to speed with the pace of technological advancement as the Amish are with the latest developments in transportation. In the end, we only have ourselves to blame here, because the USPTO and the legal infrastructure are a reflection of us. By this I mean the consumers that purchase goods/services, our elected officials that write the legislation, the court system that upholds or strikes down said legislation, the media that informs the citizenry and the corporations that abide by the legislation and media scrutiny.
The problems with the system (if one can call it that) are staggering in scope and complexity, so for the sake of brevity let's focus on a few things:
1) The USPTO Does not have the bandwidth or expertise to evaluate the flood of soft/hardware patent applications.
2) Cost of Patent Trolls on the US Economy - $29 Billion dollars and growing
3) Excessive patent suits stifle innovation - see reason #2
Poor, Poor USPTO
For a little perspective on the sheer number of patent applications that come into the USPTO, the total number of Domestic/Foreign applications for patents has grown from 164,306 in 1991 to 503,582 in 2011 or roughly a tripling of applications in 20 years.
To make matters worse, the rapid pace of technological advancement also dramatically adds to the complex nature of the patents that the poor USPTO employees have to evaluate and approve or deny.
The backlog in the patent approval process typically has a larger impact on smaller firms: if a small start-up can't get a patent to protect their intellectual property in a timely fashion, a larger company came come along and use said IP and make a killing due to the fact that it hasn't had to invest in R&D and can use economies of scale to profit at a greater pace than said start-up.
To sum up, the USPTO is being outgunned by the volume/complexity of the patent applications that are submitted...if we are going to start anywhere in addressing this problem, we need to give the front line troops in this war some bigger guns and not set them up to get crushed.
Here's what I think the USPTO needs (figuratively):
Die Trolls Die!
Personally I think patent trolls are a leach on society and the owners of said companies should be shunned and exiled to the deserts of Australia. Now that I've regained my composure somewhat, let's talk about patent trolls in a well, more subdued fashion.
In short a patent troll is a company that in it's first definition is a company that aggressively enforces it's patents through the legal system...but has evolved (need proof of evolution? see the behavior of patent trolls) into an entity that stockpiles patents for defensive and offensive purposes. Lately, and more insidiously they have exhibited the following behaviors: suing to ban/halt the sale of a particular product (Apple, you bastards...the Galaxy Tab looks nothing like the iPad), purchasing patents from bankrupt (in the process of becoming bankrupt - looking at you RIM/Kodak) companies to stockpile for defensive and offensive purposes, and this is the real soul crusher - following start-ups, waiting for them to get VC funding and then pursuing legal action...like I said, real AHOLES.
It has been estimated that patent troll companies are causing a $29 Billion dollars in damage to the US economy alone. To put that in perspective: that is more than the total GDP of Jordan/Bahrain, would pay for 193 F-25 Raptor fight jets, or pay for a couples schools...but you get the picture.
Stop twisting the knife!
Aside from the monetary damages that are afflicted on the economy by our broken patent system (if you can call it a system), there are many intangibles: damage done to corporate reputation by banning a product due to lawsuit, the MADesque stockpiling of patents, bankrupting of companies due to exorbitantly large judgments (especially for small/mid-size companies), taxes on existing products due to threat of lawsuit (Microsoft and the Android license extortion), and the list goes on and on ad infinitum.
In the end, all of these things have two end results: 1) The cost of litigation is passed on to the consumer via higher prices for products/services, and innovation is choked. So in a few words: big boys win, small guys get screwed.
So, what can we do to solve the problems with the current patent situation?
1) Nilay Patel (from The Verge)and to some extent Paul Graham (YCombinator) argue that we should allow inventors to charge whatever they want for a limited time, and then set a compulsory rate after a certain period of time.
2) Give the USPTO more resources: a larger and better educated workforce to sift through the dross and approve the legitimate
3) Appoint more tech savvy judges to the bench (see Judge Posner - you're my new hero) to again, sift through the dross and allow the legitimate
Ok, I'm done - peace out.
Credit where credit is due:
http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm - Patent Statistics
https://www.cia.gov/library/publications/the-world-factbook/fields/2195.html - GDP Statistics
http://online.wsj.com/article/SB10001424052702303292204577514782932390996.html# - Troll Tactics
http://www.journalgazette.net/article/20120709/BIZ07/307099933/1031/BIZ - USPTO backlog
http://sacramento.cbslocal.com/2012/07/02/california-to-get-patent-office-to-help-with-federal-backlog/
http://www.cbsnews.com/2100-18563_162-6755116.html - USPTO backlog
http://www.electronista.com/articles/12/07/05/judge.tossed.apple.patent.case.against.motorola/ - Jude Posner
http://www.paulgraham.com/softwarepatents.html
http://www.theverge.com/2011/08/11/broken-patent-system/
No comments:
Post a Comment