I'm no patent lawyer (or lawyer of any sort), and I admit that I quickly feel out of my depth when it comes to discussing patent law. But as an interested participant (at minimum) on technical matters at a fast-moving Internet company for almost a decade now, and as an interested observer for much longer, I remain quite frustrated with what I (and others) think are obvious flaws in our patent system. Let me repeat the disclaimer: patent law is quite complex and I'm no authority. Nevertheless, I have opinions and this happens to be my blog, so I'm going to share them.
My starting point is the idea that patent law is based on utility, not morality (or its close cousin, natural law). This, it seems to me, is different than most laws. Lots of folks like to say, "You can't legislate morality," but that's nearly the opposite of the truth. In fact, it's quite difficult to legislate anything besides morality. The law says "You can't kill someone" because, well, we all agree that it's immoral to do so. But morality doesn't really enter into patent law. You can't own an idea the same way you can own a car or a laptop or a wallet; similarly, you can't steal an idea the way you can steal somebody's wallet. If I have a wallet, by definition you can't have that wallet, and any attempt to split the wallet between us destroys that wallet or, at least, lessens its value. In contrast, if I have an idea, that has zero bearing on whether you can have the same idea; indeed, my idea becomes more powerful if I share it with others. Thomas Jefferson noted this as far back as 1813:
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
His conclusion, then, is that patent law is not based on inherent ideas of ownership, but on whether it improves society:
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.
So that's the first thing about patents: their point is not to ensure ownership, but rather to improve society by encouraging innovation: utility, not morality. It's a mistake to argue for strong patent laws by saying, "This idea is my property and by rights it should remain mine." Ownership of ideas doesn't work that way. Patent law should encourage innovation and precious little else; and if it doesn't do that, it should be changed.
This leads me to my second point: in many situations, our current patent system does not in fact encourage innovation; and it should be changed.
As the co-founder of a medium-sized Internet company, I've had the opportunity to observe first-hand how patents are used. And at least in this field, my impression is that if it were to become more difficult to obtain a patent, more difficult to enforce one, and rather less profitable to do either, these changes would foster innovation and not discourage it. The reason is simple: at least in the Internet space, I've seen patents used far more often to bully other companies than to protect legitimate innovation. Zango has often fought-off competition and, judging by the fate of our chief competitors, has fought it off fairly well. But although we've done much that is patentable, we've yet to feel the need to aggressively use patents to bully our competitors: our business moves too quickly, and we're innovating too fast, to make such a slow, expensive and blunt weapon particularly useful. The converse, however, is not true, and the patent challenges we've spent time and resources rebuffing have distracted us from our efforts to provide value to consumers.
I'm excited, therefore, to see that the House has just passed a reasonable patent reform measure (H.R. 1908) and that the bill is on its way to the Senate. As it turns out, I don't think that the bill goes quite far enough. As one of the comments on Google's blog posting pointed out, the real problem with our patent system is screwed up is excessively broad patentable subject matter: stuff gets patented these days that simply shouldn't be patentable. The bar for "non-obviousness" is set too low and the scope of potential subject matter is expanded too broadly. Unfortunately, HR 1908 doesn't address either of those two problems.
That said, the 2007 Patent Reform Act is better than nothing. It makes some technical changes to the law that all seem to point (perhaps somewhat vaguely) in the right direction. It makes it a little easier for people to challenge stupid patents. It makes it a little harder to claim absurd, astronomical damages. It makes it more difficult to shop for a favorable venue. In short, it's limited. It won't fix the problem. But it will make it somewhat better. And even that's enough to give me hope. At least we recognize there's a problem.
Oh, and Caedmon just peed on me. Apparently he's not a fan of patent law either.
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