Kill Tech Patents with Fire And Do It Now
I’ve actually had a few spare hours lately to get ahead on blogging, so I was just planning to push a post for tomorrow, read a little and go to sleep. But then I saw an article that made me get a fresh cup of water, turn my office lamp on, and start writing this post that I’m going to push out instead. There probably won’t be any editing or illustration by the time you read this, and it might be a little rant-ish, so be forewarned.
Tonight, I read through this article on Ars Technica with the headline “Patent War Goes Nuclear.” I think the worst part about reading this for me was that my reaction wasn’t outrage, worry, disgust or really much of anything except, “yep, that makes sense.” But I’ll get back to my reaction in a bit. Let me digress here for a moment to talk about irony.
Irony is a subject about which there is so much debate that the definition has been fractured and categorized into more buckets of meaning than I can even count off the top of my head. There is literary irony, dramatic irony, verbal irony and probably more. There are various categories of era-realated irony, such as Classical (Greek) irony, Romantic irony, and, most recently, whatever hipsters are and whatever they do. With all of these different kinds of ironies, the only thing that the world can seem to agree on is that things in the Alanis Morissette song about “ray-e-ay-ain on your wedding day” are not actually ironic.
The problem for poor Alanis, now the object of absurd degrees of international nitpicking derision, is that there is no ultimate reversal of expectation in all of the various ‘ironic’ things that happen in her song. Things are generally considered to be ironic when there is a gap between stated expectations or purpose and outcome. When it rains on your wedding day, that just sucks — it’s not ironic. It rains a good number of days of the year, so no reasonable person would expect that it couldn’t rain on a given day. What would most likely be considered ironic is if you opted to have your wedding inside to avoid the possibility of getting wet, and a large supply line pipe burst in the floor above you during the wedding, drenching everyone in attendance.
Another pretty clear cut example of irony is the US Patent System as it exists today when compared with common perception as to the original and ongoing purpose of such an institution. There’s a rather fascinating and somewhat compelling argument that claims the concept of intellectual property (and specifically patents) were instrumental in creating the Industrial Revolution. In other words, there was historically little motivation for serf and merchant classes to innovate and optimize their work since the upper classes with the means of production would simply have stolen the ideas and leveraged better economies of scale and resources to reap the benefits for themselves. But along came patents and the “democratization of invention” to put a stop to all that and to enable the Horatio Algiers (or perhaps Thomas Edisons) of the world to have a good idea, march on down to the patent office, and make sure that they would be treated fairly when it came to reaping the material benefits of their own ideas.
On the other side of the coin, I’ve read arguments that offer refutations of this working hypothesis, and I’m not endorsing one side or the other, because it really doesn’t matter for my purposes here. Whether the “democratization of invention” was truly the catalyst for our modern technological age or not, the perception remains that the patent system exists to ensure that the little guy is protected and that barriers to entry are removed to create truly free markets that reward innovation. If you have the next great idea, you go find a lawyer to help you draft a patent and that’s how you make sure you’re protected from unfair treatment at the hands of evil corporate profiteers.
So where’s the irony? I’ll get to that in a minute, but first another brief digression. I want to talk now about the concept of a “defensive patent,” at least as I’ve experienced the concept. Many moons ago, I maintained a database application to manage intellectual property for a company that made manufacturing equipment. At this company, there was a fairly standard approach to patenting, which was “mention everything you’re working on to the Intellectual Property team who will see if perhaps there’s anything we can claim patents on — and we mean everything.” The next logical question was “what if it’s already obvious or unrelated to what we’re trying to do,” to which the response of “what part of everything wasn’t clear?” The reason for this was that the goal wasn’t to patent things so that the company could make sure that nobody took its ideas but rather to build up a war-chest of stockpiled patents. A patent on something not intended for use was perfectly fine because you could trade with a competitor that was trying to use a patent to extort you. Perhaps you could buy and sell these things like securities packages in a portfolio. And, to be perfectly honest, my company was pretty reputable and honest. They were just trying to avoid getting burned — don’t hate the player, hate the game. “Defensive” patents had nothing to do with protecting innovation and everything to do with leverage for endless series of lawyer-enriching, negative sum games played out in court.
As I said, that was some years ago, and in the time that’s elapsed since, this paradigm seems to have progressed to the logical conclusion that I pictured back then (or perhaps I just wasn’t aware of it as much back then). Patents had started as legal protection, evolved to become commodities and have now reached the point of being corporate currency, devoid of any intrinsic meaning or value. In the article that I cited, a major tech company (Nortel) went bankrupt and its competitors swooped in like buzzards to loot its corpse. For those of you who played the Diablo series of games, this reminds me of when a dead player would “pop” and everyone else in the game would scramble to pillage his equipment. Or perhaps a better metaphor would be that a nuclear power had fallen into civil war and revolution and neighboring countries quietly stepped in to spirit away its massive arms stockpile, each trying to grab up as much as possible for fear that their neighbors were doing the same and getting ready to use it against them.
Microsoft, Apple, and some other players stepped in to form a shell company and bid against Google for this cache of patents, and Google wound up losing all the marbles to this cartel. Now, fast forward a few years and the cartel has begun shelling Google. How does all of this work exactly? It works because of the evolution of the patent that I mentioned. The patents are protecting nothing because that isn’t what they do, and they have no value as commodities because they’re packaged up into patent “mutual funds” (arsenals) that only matter in large quantities. You don’t get patents in our world to protect something you did, and you don’t get them because they have some kind of natural value the way an ear of corn does — you get them for the sole purpose of amassing them as a means to an end. And, as with any currency, the entities that have the easiest time acquiring more are the ones that already have the most.
So, there is the fundamental irony of the patent system. It’s a system that we conceive of existing to protect the quirky genius in his or her workshop at home from some big, soulless corporation, but it’s a system that in practice makes it easier for the big, soulless corporation to smash the quirky geniuses like bugs or, at best, buy them out and use them as cannon fodder against competitors. The irony lies in the fact that a system we take to be protecting our most valuable asset — our ability to innovate — is actually killing it. The patent system erects massive barrier to entry, rewards unethical behavior, creates a huge drain on the economy and makes bureaucratic process and influence peddling table stakes for success at delivering technological products and services. This is why I had little reaction to a shell company suing Google in a looming patent Armageddon — it just seems like the inevitable outcome of this broken system.
I doubt you’ll find many people that would dispute the notion that our intellectual property system needs serious overhaul. If you google “patent troll” and flip over to news, you’ll find plenty of articles and op-eds in the last month or even the last week. The fact that abuse of the system is so rampant that there’s an endless news cycle about it tells you that there are serious problems. But I think many would prefer to solve these problems by modifying the system we have now until it works. I’m not one of them. I think we’d be better served to completely toss out the system we have now and start over, at least for tech patents (I can see a reasonable case for patents in the field of medicine, for instance). I don’t think it can be salvaged, and I think that I’d answer the question “are you crazy — wouldn’t that result in chaos and anarchy?” with the simple opinion, “it can’t possibly be worse than what we have now.”
In the end, I may be proved wrong, particularly since I doubt torching the tech IP system is what’s going to happen. I hope that I am and I hope that efforts to shut down the trolls and eliminate situations where only IP lawyers win are successful, but until I see it, I’ll remain very skeptical.
Back to regularly scheduled techie posts next week. 🙂