Go to your favorite search engine and type in “technology patent suit” and see what happens—and if you’re able, look for items added or updated within just the last month (just to provide a sense of scope). What you’ll see is a litany of articles and commentaries about companies suing one another over this or that real or perceived patent infringement. And the names are very familiar: Apple, Cisco, Facebook, Google, Motorola, Oracle, RIM (BlackBerry), Samsung, TiVo, Yahoo—the list goes on. One wonders where some of these companies find time to develop and market actual products (I know, their legal departments are just huge). According to Seeking Alpha (“Global Patent Wars Intensify In 2012”), “This is really the year for the global “Gold Rush” in patent litigation. There are and will be ongoing lawsuits regarding patents throughout the rest of 2012.”
The Data Center Journal has previously discussed intellectual property, particularly in the context of the SOPA/PIPA debacle (“Aftermath of SOPA and PIPA: Let’s Talk IP”). The patent system (or, more broadly, intellectual-property law) is seldom questioned per se, but people tend to know a bad apple when they see one. Perhaps the quintessential example is the patenting of human genes (“How human genes become patented”). Another recent example is the pending patent of a certain new cut of beef (“Can you patent a steak?”). But regardless of how absurd certain patents are, seldom is the entire system of patent law questioned.
The Purpose of Patent Law
Patents, like intellectual-property law in general, are intended (at least ostensibly) to enable inventors (of whatever the good) to claim certain rights over their inventions so as to reap some level of financial reward for their efforts. At first glance, this seems reasonable: an individual who spends years developing a new technology could otherwise find his technology “stolen” and marketed by a large company, leaving the inventor with nothing to show for his work. In most people, this evokes at least a modest sense of injustice—someone (an individual or organization) can make money off of someone else’s work. Patent law attempts to reverse this injustice (whether real or perceived) by making such “theft” unlawful.
The question then arises as to the limits of patent law, and although this may be a philosophical question, it is one worth addressing in light of the billions of dollars spent by companies in pursuing legal actions against one another over what often amount to very specious claims of patent infringement. Even patent law establishes limits on ownership rights—they expire after a time, they may be withheld if the government considers a patent to unduly inhibit progress and so on. In other words, patents in reality are not about principle: after all, why would an inventor ever lose a “right” to something he has made? Patents are about pragmatism—and that may be the giveaway.
Generally, a principle that, when applied, leads to absurd results is dismissed as being somehow erroneous or otherwise unacceptable. For instance, most people would tend to view an absolute prohibition on physical violence to be unacceptable since it eliminates the possibility of self-defense; thus, a more refined principle would be needed to address criminal or immoral violence. The same may be true with patents: since they would seem to enable absurdities like patenting of human genes, effective patenting of second-generation seeds (“Saving Seeds Subjects Farmers to Suits Over Patent”) and so on, something must be wrong with the principle, or at least the way it is applied.
A Brief Look at Who’s Suing Whom
So, whose legal departments are busy these days with patent cases? See if any of these patent claims sound specious to you. Superspeed LLC is suing Google over the search giant’s Google Drive (“Google hit with patent claim over Google Drive”). “In a suit filed in Houston federal court, Superspeed LLC claims it owns technology that allows multiple computers to quickly access a common disk at the same time.” Research in Motion (RIM), the maker of BlackBerry, is being sued by Mobile Telecommunications Technologies over “several software functions including those that store and resend undelivered data messages, that handle call back numbers, and which allow a server to process extra-large emails” (“BlackBerry-maker RIM hit with new patent lawsuit”). The Android operating system is constantly under attack for some alleged patent infringement or other: “It’s another day in the tech world, which means that there are lots of stories swirling around Android devices allegedly infringing upon patents” (“Android patent litigation roundup, featuring Google IP lawyers and the Samsung Galaxy Tab”). Samsung and Apple are at each other’s throats, as well (“How Samsung could get its revenge against Apple”). A recently decided case between Google and Oracle (“Court on Oracle vs. Google: No patent infringement”) seems to potentially draw some boundaries on patents, but the jury verdict was a mixed bag.
Needless to say, this is just a smattering of examples from the world of patent litigation in the IT sector alone. Add in other areas and you have the makings of a gigantic industry built around the notion that an inventor should be able to profit from his invention.
What Would a World Without Patents Look Like?
All of this legal wrangling, which wastes billions of dollars that could otherwise be spent elsewhere, raises the question of what the world would look like without patents. Would it be that bad? It’s hard to say; it certainly would look a little different, at least at the corporate level. Think Intel: the semiconductor giant has all but exclusive rights to the x86 architecture (one exception being AMD, which is nevertheless a perennial laggard behind Intel). In the absence of patent law, other companies would be able to develop and sell x86 processors; but this isn’t the salient point. What would happen to Intel’s development of more-advanced architectures? What about new process technologies that drive Moore’s Law? These technologies require billions of dollars of investment before any return is even seen—should other companies be able to capitalize on this investment without paying anything for it?
To some extent, the world of open-source software is an example of how technology markets would operate in the absence of patents: some aspects of technological progress would improve, others wouldn’t. Such a change wouldn’t be purely positive, nor would it be purely negative. The question is simply this: do people want to live in a world without patents? Tied up in this question is whether people want to live in a world where, for instance, human genes can be patented.
Unfortunately, there is no way to easily test a patent-free economy, although certain markets may provide some insight. Given the absurdity of some patents, however, a frank discussion of patent and IP law should be undertaken. In the meantime, technology companies will continue to use patent suits as a means—sometimes an underhanded one—of clobbering competitors.
Photo courtesy of opensourceway
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