Patent purpose lost

As I live in Norway, I’ve yet to have to be directly involved with patents, even if I work with technology. The closest is that a colleague received a patent, but I think even that is unlikely to elicit much drama. And I think the above is a good thing.

Lately the world wide patent litigation events have proliferated at an accelerating rate, Apple vs Samsung, Apple vs HTC, HTC vs Apple, Lodsys vs Apple, Oracle vs Google and the implicit Google vs Lodsys. So, what are these patents?

Patents are closely related to copyright, just applied to technical descriptions instead. Well, originally at least. In the “modern” form, patents have existed for a few hundred years, and is a means to register an invention such that none but the inventor can build and sell the invention without having a license (usually paid) to do it. The idea is that an inventor, who may or may not have the means to actually build the invention, still can earn from it. Well, he can sell the idea anyway, but all businesses are so ruthless and mean, that unless there is a registered patent, they won’t pay for the right to use it, but rather just use it and leave the inventor in the ditch. Dodgy business ethics aside, this wasn’t that much of a bad idea back in the days, and it can be said that it isn’t necessarily a bad idea these days either. However, there is a huge issue with what it is that can be patented.

Initially the patents were about machines, either machines for the consumer, or machines that produced something for a consumer (or machines that produced something for machines that produced something for the consumer, etc etc). Now, can an inventor patent anything? If he has this idea of a fantastic round thing, that can roll and be mounted on other square things, resulting in the square thing also rolling, can he patent it? No, and there are two reasons for that. The first is called prior art, meaning that someone has already thought of it. The second is that the idea is obvious.

You can only patent things that haven’t been thought of before, as that would mean that either, you’ve taken the idea from someone else, or it is so obvious that many can easily enough get the same idea. The obviousness test is there to make sure that patents are only awarded to someone that is worthy. If the idea is so simple that several are likely to think of it within the same timeframe, then it isn’t patentable.

As time went by, it became more common to patent consumables that weren’t machines, after all they were invented, and rather complex, medicines being a prime example. And then machines evolved, becoming complex programmable beasts, and these could run algorithms/instructions/programs that in themselves were complex. So surely it makes sense to make these programs patentable also? And most recently, humanity became able to sequence their own hereditiary material, DNA. DNA, even if present in all humans, differ a bit here, a bit there, and are very complex. Surely these can be patented?

Patents are clearly good from the perspective of the inventor that was awarded the patent. Or, that is at least true if he earns money on it. Now, since the inventor earns money from the patent, patents must be good for innovation in general, and innovation is good for the society, so patents should then benefit us all. Pretty awesome idea.

Just that lately this awesome idea has lost some of its potency. Maybe in the US of A particularly, but also elsewhere, they seem to have forgotten about the obviousness test. The most egregious example is probably the “one-click buying“-patent awarded to Amazon  back in the dotcom hey days. Then there is the question of how the hell can anyone patent someone else’s DNA? Further it is becoming more and more obvious that patents fail to drive innovation, and it also fails to help the sole innovator.

I think I probably can continue writing around myself on this topic forever, so I will try to continue by pin-pointing facts and/or opinionated statements.

  1. New products and new technology based on a single invention is rarely, if ever, happening anymore.
  2. And if it happens, it almost never is done by the sole inventor.
  3. New products and technologies, whether evolutionary or revolutionary, is built from a multitude of minor inventions. One person may have invented one, but more likely each part was invented by a team, and the complete product/technology by a set of teams.
  4. Most of the building blocks of even brand new technology, were invented or thought of decades ago, trying to shoehorn it to a specific task doesn’t change that.
  5. Applying for a patent makes the invention public, making it easier for a malevolent competitor doing the same thing.
  6. If someone uses your patent without a license, you will, if having a smaller company than the perpetrator, have to prove it in a costly court case.
  7. If your company is larger than the perpetrator, then you are by definition not a sole inventor, and you are also more likely able to take the costs of a trial.
  8. Patents don’t add value, nor growth, to society or economy, or certainly not more than normal licensing of technology.
  9. Between larger companies, costs due to licensing patents and technology most likely cancels out, making it a pointless excercise in balancing sheets.
  10. Patents add costs that reduce capability to do R&D; litigation processes, speculative buying of patents, inflation of population of lawyers.
  11. Patents by larger companies blocks the smaller, more innovative companies, and the sole inventors, from even entering the fray.
  12. Technology is a real asset, a patent is the right to be an asshole about it.
  13. Patents make competition into a squabble over implementation details rather than real innovation and quality.

I’m inclined to claim that everyone would be better off without patents. I may accept that they can be helpful for industries where R&D costs are extremely high, such as medicin, and possibly mechanical/chemical/biological, but I do think that most of what I say in the next paragraph applies here too. If such patents are to survive, the rules to award them must become stricter. Design patents I am ambivalent towards. I see how they make sense, and I see how fuzzy discussions over them can become.

Patents for software, algorithms and business ideas should be killed off as soon as possible. The consumer couldn’t care less about which patents some product implements, but he does care about the product becoming more expensive over them. And he cares about the quality of the product, the feeling of it, the price of it. Because someone had a nice idea, they shouldn’t be able to block all ideas and improvements from others that could follow.