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Patents are about to become a bigger problem
Aug 1
10 Comments Tweet Written by Jeremy Mims
Most people don’t realize just what a giant Ben Franklin fan I am (nope, I didn’t even go to Penn). But the reality is that I consider him to be the most successful embodiment of the American ideal. He was an inventor, a philosopher, a humanitarian, a writer and a great contributor to the world (I mean, come on, he invented the modern lending library). While lots of people have heard about Ben Franklin’s “discovery” of electricity, most don’t really know about one of his other great inventions: The Franklin Stove.
In its day, it was a revolution. It heated a room effectively, used less wood which required less deforestation, prevented house fires, was great for cooking, and while Franklin’s partner manufactured and sold them, the design was given away for free in a pamphlet in what might be considered as one of the first Open Source business models. When the Governor of Pennsylvania at the time offered to have the stove patented in Britain, Franklin refused on principle. He said, “that as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.” Ben Franklin gave this invention away because he thought it would be criminal to collect a bit of extra profit while denying an invention to the world that would save lives. Franklin made money from it, just not maximally so. Other people improved on this stove and it eventually became a staple of the American household. But that isn’t the whole story.
Even Ben Franklin got into a mess over patents.
From his autobiography:
“An ironmonger in London however, assuming a good deal of my pamphlet, and working it up into his own, and making some small changes in the machine, which rather hurt its operation, got a patent for it there, and made, as I was told, a little fortune by it. And this is not the only instance of patents taken out for my inventions by others, tho’ not always with the same success, which I never contested, as having no desire of profiting by patents myself, and hating disputes.”
Before the United States Patent System, hell, even before The United States itself, patents were causing major problems. America’s most quintessential inventor did without them and thought they were foolish. I’m inclined to agree.
Now, into modern day. Technology companies are lobbying for what has been so beautifully termed “Patent Reform”. Who doesn’t want patent reform? Let’s kick the trolls, knock software patents out, and let’s all get back to the business of making things while not getting sued. But that’s not what “Patent Reform” means. In the great tradition of the “Clear Skies Act”, we have the “America Invents Act” that recently passed The Senate easily in March and The House of Representatives in June. It’s a patent reform that makes it easier for any business to file patents on anything and it’s called “First to File”. It sounds fair and equitable, but the reality is that big companies with armies of lawyers will begin patenting enormous amounts of crap in the hope that one day it will provide legal leverage. See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. Ben Franklin’s ironmonger of yore is here to stay. In the startup world, we have a tendency to say that ideas aren’t worth much without quality execution. Here, we have the government making it especially difficult for entrepreneurs.
Worst of all, The Obama Adminstration (who I admit I voted for), and almost all Republicans and Democrats in Congress support it. After all, every large tech company from Apple to IBM is in favor of it and they promise it will create jobs (not like they’ve had real trouble acquiring and being issued patents before). The reality is merely that it will lock in large company advantage for decades and maybe forever. Nonetheless, it is probably too late to turn this situation around. This bill is now in reconciliation and President Obama has indicated that he will sign it into law. Make no mistake, this is a bad deal for startups and makes it much more likely that the next innovative company out there is a frivolous lawsuit away from not being the next innovative company.
In The Social Network, Justin Timberlake asks Jesses Eisenberg a rhetorical question: “A million dollars isn’t cool. You know what’s cool? A billion dollars.”
You know what’s actually cool?
After Jonas Salk had created a vaccine for Polio in 1955, he was interviewed by legendary newsman Edward R. Murrow. Murrow asked, “Who owns the patent on this vaccine?”
Dr. Salk replied “Well, the people, I would say. There is no patent. Could you patent the sun?”
I’ll leave you with one other quote from Jonas Salk:
“Nothing happens quite by chance. It’s a question of accretion of information and experience.”
We’re all standing on the shoulders of giants and we can never pretend to own all the work that made ours’ possible. This is a travesty of monumental proportions and the concern around it is merely a whimper.
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Dude, “first to file” changes nothing. “First to invent” didn’t require to actually build anything to be able to patent it either. In either case a valid patent just has to describe it in sufficient detail to let anybody else build it.
First to invent only mattered if two people file claiming the same invention (which itself happens extremely rarely), and if one party could prove that they invented it before the other’s filing date, then they got the priority. If you had a dated notebook on which you scribbled how your invention works in enough detail (“reduced to practice”), that is sufficient proof of invention. You didn’t have to build anything at all.
Ideally, you’d be right. In practice, especially in the tech world, people who don’t seek patents come up with innovations all the time. These innovations can be patented by groups who can extract payments from the true inventors or shut them down entirely.
True, my point was, “first to file” vs “first to invent” will change nothing. Even if your invent something before somebody else patents it and you don’t patent it, first to file only you means you lose your right to a patent on that. If you can prove you invented it before they did and your work was publicly accessible, your work becomes prior art which can invalidate their patent.
I’m not sure what happens if your work was not publicly available. I’d guess you’d have a tough time proving you invented it before they did.
fwiw, I asked about this on Quora a few months back and got what seems like a good and detailed answer.
http://www.quora.com/Law/What-are-the-implications-for-entrepreneurs-of-the-patent-reform-act-passed-by-the-Senate-in-March-2011
After this thing is signed I wouldn’t be surprised if some HBS douchebag does try to patent the Sun.
“In it’s day, it was a revolution” No. “It’s” means either it is or it has. “In its day, it was a revolution” is correct.
You’re right. Fixed.
Patents are not the problem, bad patents and unethical patent holders are the problem. Were it not for patents, the little guy would never have a level playing field. The huge problem is patents that never should have issued. The USPTO rushed to issue business method patents to software without sufficient domain knowledge, and as a result there are a boatload of questionable patents out there that could and should be invalidated on lack of novelty and because the invention would be obvious to a “person having ordinary skill in the art.” The patent reform would have been a great opportunity to have a better-fit form of IP protection for software than patents. Unfortunately our elected officials have been persuaded otherwise by some very well funded lobbies.
I have to disagree. Patents are always a problem. They are NOT designed to protect the “small” guy, and therefore never do. They do howevr benift entrenched interests. Take a look at the case of Shuji Nakamura who developed the first comercial high brightness Blue LED. The company he worked for prompty patented the process and paid him a fee equivalent to 180 USD. That is not a miss-print. Less than 200 dollars for a design that made them over 1 billion dollars. Thats how patents protect the small guy!
Patents are not the problem,
Actually they are. Patents as currently implemented have intrinsic problems. Two of the biggest are the perverse incentives that are causing a huge number of junk patents to be to be created and the whole concept of artificial scarcity being an unalloyed good where billions of people are blocked from doing something so that a very small number of people can have increased profit.
bad patents and unethical patent holders are the problem.
Intrinsic to the current setup. Major changes would be needed to fix it, so much so they might as well not be called patents.
Were it not for patents, the little guy would never have a level playing field.
Patents are a tool, nothing more, and major players have more of them. It doesn’t change the balance of power at all, despite perpetual patent industry propaganda to the contrary.
The huge problem is patents that never should have issued. The USPTO rushed to issue business method patents to software without sufficient domain knowledge, and as a result there are a boatload of questionable patents out there that could and should be invalidated on lack of novelty and because the invention would be obvious to a “person having ordinary skill in the art.” The patent reform would have been a great opportunity to have a better-fit form of IP protection for software than patents. Unfortunately our elected officials have been persuaded otherwise by some very well funded lobbies.
Yes, those who have the gold make the rules. The patent system doesn’t change that and unfortunately entrenched interests have a lot of that gold and the general community is uncoordinated.
Many (most?) areas of ideas work quite well without patents e.g. I decide to open bar in a particular growing town. Nobody’s ever had that idea before. Why can’t I patent that idea, stop competition and protect my investment? It’s clearly not an obvious idea because nobody’s ever done it before. See how that works?
It’s time entrenched patent interests were given the boot and forced to make a real living rather than parasitising the general community using hand-waved justifications.