Listening to mainstream commentators opine on how to improve the patent system is getting to be increasingly frustrating. Even though patent and copyright should be abolished,1 as I noted in Patent Reform is Here! O Joy!, incremental reform would be welcome too–as long as it’s significant, and unambiguously positive. There are lots of things you could suggest: shorten patent terms from 17 to 10 years. Not enough, but progress! Get rid of injunctions. Provide an independent inventor defense. Choke back on software patents. Provide a “working” or reduction to practice or “working model” requirement. I’m easy.
In a recent Slate post, How To Kill Patent Trolls, tech journalist Farhad Manjoo proposes that the solution to the problem of patent trolls is “Hire a crowd of amateur sleuths and give out a lot of prize money.”
There are a couple of problems with this proposal. First, it aims to improve patent “quality” by weeding out “bad patents”–those that “should not have” been granted–by using crowdsourcing and incentives to increase the quality of prior art brought to the patent office’s attention. Second, that improving patent quality will address the patent troll problem.
Let’s take the second issue first. Improving patent quality will only reduce the number of bad patents. Instead of the USPTO granting, say, 224,505 patents per year (or 247,741, depending on the source), 58% of which are “crap” (a technical word we patent attorneys use), say–it would only end up granting maybe 100,000 patents, all or most of which are “good”–meaning, they “should” have been granted, according to US patent standards of novelty and nonobviousness. But the thing to realize is that bad patents are not the problem. It is good patents that are the problem. If you have a perfect patent system that generates 100,000 “good” patents a year this is 100,000 little monopoly grants of privilege that the holders can use to stop competition, emulation, copying. We can’t have unbridled, “dog-eat-dog” competition, ya know! This ain’t no blasted free market, ya hear?
Further: bad patents versus good patents has nothing to do with the patent troll “problem”. This alleged “problem” is a result of the fact that there is no requirement to use the invention your patent covers, or even to produce a working model of it. There is no working, use, or reduction to practice requirement. The patent statute requires that the claimed invention be novel, and non-obvious, and also have “utility”–i.e., that it function. But the latter is just assumed, except in rare cases where it appears to the Examiner that something impossible like a perpetual motion machine is being claimed. Filing a written description of an invention substitutes for the requirement to reduce the invention to practice–it’s called a “constructive reduction to practice.” Given this: improving patent quality has nothing whatsoever to do with the “troll” problem. Even if you get rid of the 58% crap patents, the remaining 42% “high quality” patents will still be granted to patentees, some of which are not using the claimed invention. There is no reason a patent troll cannot own and use a “high quality” patent! So what is Manjoo talking about?
At most, the crowdsourcing solution will increase–at someone’s expense–the quality of prior art examined for existing patents. This will reduce the number of “bad” patents, but will increase the quality of “good” patents that pass the heightened test, which will only increase the bargaining power of the holders, since the chance of defeating these strong patents in trial are reduced.
- See Patent vs. Copyright: Which is Worse?; Where does IP Rank Among the Worst State Laws?; The U.N. Threat to Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; The Ominous PROTECT IP Act and the End of Internet Freedom. For examples of copyright censorship, see Libraries: Prepare to burn foreign books, courtesy copyright law; The Patent, Copyright, Trademark, and Trade Secret Horror Files; Paramount Trying to Ban “Godfather” Sequels with Copyright; Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment. See also Patent Trolls Cost The Economy Half A Trillion Dollars since 1990; Yet Another Study Finds Patents Do Not Encourage Innovation; EU newsflash: patents are anticompetitive!; Intellectual Property Advocates Hate Competition; IP Rights as Monopolistic Grants to Overcome the Public Goods Problem; also Samsung, Apple continue patent dispute; Apple accuses Motorola, Samsung of monopolizing markets with patents–or, you’ve got to be kidding me; We Hope Apple Wins the Patent Wars; Android Patent Trouble Worsens: Motorola Considers Collecting IP Royalties; Apple vs. Microsoft: Which Benefits more from Intellectual Property?; EU: Apple-Samsung row could be stifling competition; EU Injects Itself Into Apple-Samsung Patent War. [↩]