Monday, September 26, 2011

Do we really need technology patents?

In April of this year, Apple, not satisfied with having proven they can run circles around their competition through technological innovation and execution, decided they needed to add lawsuits to their mix.  They sued Samsung for patent infringement, claiming that a number of Samsung's phone and tablet offerings resembled the iPhone and the iPad too closely.  Samsung, realizing the gloves had come off, dug into their own patent libraries and found reasonable grounds to sue Apple for infringement of some of their wireless technology patents.  Victories have been won and lost, lawyers made money, and the saga spins out some new headlines every few weeks for those interested in this sort of thing.

Is anybody winning this fight?

It's worthwhile to ask why we have patent law in the first place.  Patents have a long history, stretching back to Italy in the 1400s (or earlier, depending on your definition).  In the United States, the foundation for patents was laid into the constitution, and implemented into law in 1790.  Those were heady times for technology innovation.  The Constitutional Convention in Philadelphia adjourned early one day to watch the trials of John Fitch's steamboats on the Delaware river.  It seemed a reasonable step to allow the innovative geniuses who were creating these novel and unheard of technologies to have some exclusive profit for a period of time.  Perhaps it made sense then.

Does it still today?

In today's world of technology advancement, it's pretty hard to come up with a widely agreed upon definition of what is new and innovative enough to merit a patent.  One common rule of thumb is that an innovation must be non-obvious to somebody trained in the field.  But the problem is, which person are you measuring against?  The quality of people in software development varies widely.  If I invent a clever new algorithm, it's likely that hundreds of thousands of IT professionals won't have thought of it, and by that standard it is non-obvious.  But the field is also filled with thousands and thousands of geniuses in Silicon Valley and elsewhere that not only find it obvious, but they probably already thought of it in the shower and never thought it was worthy of following up on.  So patents are not so much a protection of innovation as an intellectual land-grab.  Whoever files the (somewhat expensive) paperwork gets the rights.

The patent proliferation is so bad that it's not only possible, it's virtually inevitable that any large and complex code will inadvertently infringe upon dozens of pre-existing patents.  This isn't a theoretical concern.  The problem is bad enough that Google was willing to spend $12.5 Billion dollars on Motorola, not because they had a burning desire to run a cell phone company, but purely because they wanted a war-chest of patents to protect their Android software.  Not all of those patents will apply, but just having them serves as leverage against any other technology company that may choose to sue, just as Samsung has started to do with Apple.  Patents are not innate.  We the people have chosen to allow them so as to stimulate innovation.  Is this really where we want Google, and every other technology company, to be spending their money?

What can we point to that suggests that technology patents actually stimulates innovation?  Do you really believe that if we abolished patent law today, most or all of the consumer device gadgets would stop making cell phones and tablets and DVD players and TVs?  Do you really think we're better off as a society if Apple gets twenty years to make tablets with no competition?

I would answer "no" to the above.  And if Apple starts focusing more on patent litigation than on making "insanely great" products, I think we might mark this point in future history books as the moment when they blew one of the great turnaround stories of modern times.

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