Patents (and software patents in particular) strike at the heart of innovation and are a touchy subject for a lot of people. On one hand they can be seen to encourage innovation by helping people protect what they have created, but on the other they can be seen to stifle innovation due to patent trolls and a sense of ‘legal might makes right’.
The latter is perfectly encapsulated in a recent article by Charles Duhigg and Steve Lohr in the New York Times titled ‘The Patent, Used as a Sword‘. It’s a lengthy article, but well worth the read if you are at all interested in the scale of this issue – particularly in light of the myriad of mobile-focused patent war stories grabbing the headlines at the moment.
As the title of the article suggests, it is clear that patents are now being regularly used as a sword to attack and undermine the competition, rather than as a shield to protect innovation.
A few figures from the research really stand out:
- Over 540,000 patent applications were filed at the US patent office in 2011 – more than a 50 per cent increase over the last decade
- Patent lawsuits filed in US district courts have almost tripled in the last 20 years – to 3,260 in 2010
- The number of patent applications submitted by Apple each year has risen almost 10x in the last decade
- Google has received 2,700 patents since 2000. Microsoft has received 21,000
- In the smartphone industry alone as much as $20 billion was spent on patent litigation and patent purchases in the last two years (an amount equal to eight Mars rover missions)
These are interesting stats, but this is the line that made me stop in my tracks: “Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.”
The fact that companies like these are now spending more on suing each other than on developing anything new instantly throws the entire debate into a whole new light. To me, it’s clear that the system is broken and something needs to be done to rectify this.
Patents definitely serve a purpose, but the broadness with which a software patent can be accepted by the US patent office leaves this system open to abuse. This is the first issue that needs to be addressed and tighter requirements on what qualifies as unique would go a long way to solving some of these issues and limiting the effectiveness of patent trolls. As the article suggests, another option is to create more clearly defined classes of patents, thereby allowing measures such as cutting the duration on digital technologies and introducing more flexibility into the mix.
It’s worth mentioning that, while this problem is by no means restricted to the US, most of the rest of the world handles software patents in a very different way (and in many countries, including the UK, it is not possible to patent a computer program). The US and similar countries could evaluate some of the measures and processes used by countries not afflicted by the problem of these wars and see if any are applicable there.
With the possible exception of lawyers and deliberate patent trolls, the current patent system is bad for everyone. It stifles innovation, it hinders collaboration, it limits customer choice and it raises the cost of the products that do make it market. Exactly what the answer is and how we go about implementing this change remains to be seen, but this tipping point makes it clear that something needs to be done.