The Data Center Journal has looked periodically at the patent system (or, more generally, the patent/copyright system), particularly in light of the ongoing patent wars between mega tech companies like Apple and Samsung. Given the increasing momentum of the mobile market and the technologies that power it, patents make entry by smaller companies nearly impossible. Combined with seemingly childish legal antics, calls for review of the patent system are increasing in frequency; are we reaching the end of the road for patents?
The Slippery Slope
For the purposes of this article, the term patent will be broadly applied and may encompass instances of copyright. Copyrights and patents are different, but they both apply to the general category of intellectual property (IP). Patents tend to be more applicable to technology, but the same fundamental principles underlying the patent system also underlie the copyright system.
To those who aren’t entirely enamored with the arguments extolling the benefits of patents, the ongoing patent wars between large companies are mostly something to shake one’s head at. Litigation that targets smaller companies may evoke a slightly more nervous reaction—doesn’t every company start small? But battles among companies may not be the limit of patent litigation. Ars Technica has reported on so-called patent trolls going after users of technology—not just vendors or manufacturers—for patent infringement. The article cites one case that illustrates “a practice that has become commonplace in the past year or two—going after the users of basic technologies.”
Does your business offer Wi-Fi to customers? You could be next on the litigious agenda of Innovatio IP Ventures. If you just use Wi-Fi at home, however, you don’t have to worry—yet. “Will the onslaught reach the front doors of average, WiFi-using, American households? At least not ‘at this stage’ of Innovatio’s ‘systematic campaign,’ said Matthew McAndrews, a partner at Chicago-based law firm Niro, Haller & Niro, and the lead litigator for Innovatio in its infringement lawsuits.” In other words, patent trolls probably believe they have the standing to come knocking on the door of your home, just maybe not the PR capital.
These types of lawsuits—as ridiculous as they may seem—are simply the outworking of the principles of the patent system. If you use a patented technology, you owe compensation to the inventor of that technology. In the context of copyright, it doesn’t matter whether you use the technology for profit; after all, would it matter if you stole a car to joy ride instead of to deliver pizzas? Of course, these two situations are not entirely comparable, but this is the type of argument that one might encounter in objecting to the patent system. Thus, patent trolls—as hated as they may be—are simply taking patents to their logical ends.
Real Reform: Fuggedaboutit
Most people probably recognize that something is wrong with the patent system, even if they still support the basic ideas of IP. Those ranks will swell if patent trolls or other companies start threatening home technology users with lawsuits. The problem is, as mentioned above, that the kinds of rankling “abuses” (such as those mentioned above) really aren’t abuses at all. They are the logical implications of the system. Thus, calls for reform (as opposed to wholesale dismissal) are unlikely to produce real results. Here are a few reasons why.
- Government doesn’t reform anything. How many times—including in the recent inaugural address—have we heard calls for reform of government, (government) schools and so on, only to be disappointed year after year? It will throw more money at the problem, but it won’t fix it without overwhelming public support.
- The voices shouting the loudest (i.e., offering the most money) will be those in support of the patent system as it stands. Mega companies (Apple, Google and so on) have little reason to oppose the patent system. Patents eliminate competition.
- Proposed reforms often run against the logic of patents. If a company or individual really owns a right to a technology, on what basis can legal action against infringement be stopped, even if it involves end users?
- Dividing IP into protected and unprotected classes is difficult, if not impossible. One approach to reform is to protect one type of abstraction—say, actual software code—but not another—like the goal of software. But abstractions are abstractions; on what fundamental basis can these two categories be clearly and cogently divided?
Of course, eliminating the entire patent system is impossible in the current climate. Large companies, particularly those that have spent billions of dollars on building their patent portfolios, have little incentive for such a position. Although public appeals for action to this end have always existed, only now are they gaining momentum, fueled in part by the recent spectacle of companies suing each other for vast sums of money over things like rounded corners on a cell phone.
Will and Should the Patent System Be Discarded?
The patent system will likely stay in place, at least without any fundamental changes, for some time. The question of whether it should be discarded, however, is a different matter. Divorcing the topic from emotional appeals is difficult. For instance, say you invented a grand new technology (something more important than rounded corners): would you be willing to forgo patent protections? On the other hand, do you think that a patent troll should be able to demand that you pay for using a technology (like Wi-Fi) that you already purchased from a legitimate vendor? Most people would probably balk at getting rid of patents all together (especially if they spent time and money developing a new technology), but few would likely say they are willing to cough up a license fee for using their Wi-Fi devices or scanners. The problem, however, is that these two cases are fundamentally linked—it’s logically difficult, if not impossible, to have one without the other.
Some amount of reform may eventually occur, but it will not be fundamental in nature. It will probably just curb the most egregious examples of patent-infringement litigation so as to keep the bulk of the system in place. Building the kind of public support needed to forgo the entire system—if that is to ever happen—will take a long time, although it will be accelerated if patent trolls decide that money is more important than public image.
Clearly, however, questions about the patent system are increasing, and critics are gaining credibility—largely thanks to the legal antics of companies. If nothing else, a healthy debate about the legitimacy of patents can help clarify who has what rights and who has what responsibilities.
Photo courtesy of opensourceway