I had an idea on the bus coming into work this morning. It didn't have caffeine applied yet, so it's either less or more coherent than normal.
I was wondering how much of the patent brouhaha over the last couple of years (at least it seems like it's been louder, or at least a bigger issue, over the last couple of years) is a result of companies filing patents to protect themselves from patent infringement lawsuits from other companies.
Say "Company A" comes up with a new whizbang widget. They file a patent on it, so "Company B" can't sue them for their new whizbang doodad product. "Company B" files for patents to be safe in case "Company A" (or C or Z) happens to get a patent that covers something similar. The arms race escalates, with each company adding to their stockpile in potential defense of attack by patent-wielding aggressors.
I believe that companies may be justified in doing this, as the patent system has obviously been damaged. Prior art may not be disclosed on patent filings. Obviousness is irrelevant. Anyone can patent anything (well, anyone with enough cash).
What if there was a neutral third party agency, a Switzerland of patents, where companies (and individuals) could transfer patents under the condition that the patent never be enforced. The company that created the patent is still protected from future litigation related to that patent, innovation is encouraged, and the arms race becomes defused.
Ideally, there would be a team of lawyers making the process run smoothly. Even more ideally, anyone that signs ownership of a patent to the PFF would be reimbursed for the costs they incurred while filing the patent, so there's nothing to be lost. Maybe there's even a premium that could be paid – companies can make money directly from transferring patents to the PFF.
Taken a step further, the PFF team would be actively working with the community, responding to other patent applications and helping to show prior art where possible.
This concept could be used as a form of repair mechanism for the patent process, and could be extended to include different forms of patents (software, technology, genetic, etc…) to create a safe and level playing field.
Not every patent would be appropriate – many are filed for the express purpose of creating an uneven playing field. But patents that are filed strictly to carve out a defense against potential litigation would be prime candidates for this. Maybe the Blackboard LMS patent could be the first one?
Of course, I am not a lawyer. This may make no sense at all, and I might just come off sounding like a left-wing pinko, but I think there's something to the idea of a PFF.
{ 7 comments… read them below or add one }
yeah yeah. gods forbid some money is left on the table. every resource must be extracted with the highest possible efficiency and effectiveness. Maybe they could sell advertising space on the patents themselves, as well?
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the new economy: information is the new currency. currently, patents are worth money, but in the future money may be worth patents.
absolutely.
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heh. I’ll pay my mortgage in patents. must keep innovating to prevent termination. innovate or die!
Turing over patents to a third party organization so that they never be used would be a violation of fiduciary duty that each company has to its shareholders. Those patents are worth dollars, and such a move would be like giving away money, just because its the right thing to do.
What does company A gain if company B doesn’t do the same thing, what if there is company C that comes out of no where doing more or less the same thing, but then files a patent for a little tiny adjustment that makes their product better than yours… You now have a patent that can’t be enforced and they have a product that uses essentially your idea, and changes it enough to get an advantage on you.
Also, each company would want to do a cost-benefit, that would essentially lead to the total cost of this project to be the same as if you licensed the patent from the company, because why would any company leave money on the table? Doing so would be again against their fiduciary duty.
Gary – my proposal does not assume only two reasons for filing a patent, nor does it assume that every patent would be appropriate for such open protection. Companies are, of course, free to do anything they want, including using patents to recover their R&D investment. I wasn’t trying to suggest that R&D be left unprotected – patents covering that kind of activity are valid and important.
What I was trying to suggest is that companies that file patents on already-developed processes and inventions, in order to protect themselves from silly patents filed on obvious inventions, be able to secure protection from litigation while essentially “parking” the patent. This could be seen as potentially addressing the Tragedy of the Anticommons, at least partially.
I’m not going to address your deliberately belligerent remarks, except to say that both Sami and davidicus are friends of mine in the real world, and I value their opinions much more than some semi-anonymous, confrontational drive-by commenter.
Your proposal assumes there are only two reasons for filing for patent — lock up the patent on the invention before someone else locks it up or a malicious intent “to make an uneven playing field.” You miss the real reason most organizations go after patents: to be able to recoup their investment in developing things.
If someone (wheter a company or a person) sinks $X into developing an invention and they DON’T have a patent on it, then as soon as it is rolled out the competitors can copy it. The competitors then get free R&D courtesy of the company that didn’t have a patent.
Maybe that’s OK in your imaginary universe where everything’s open source, but out here in the real world that quickly comes to mean that it stops making sense for the company to dump $X into developing new things when some competitor will reap the benefits of that investment. That discourages investment in innovation. The founding fathers understood that and that’s why they put the ability for Congress to secure exclusive rights to authors and inventors into the Constitution [Article 1, Section 8].
Your first poster is dead on. Companies that give away their assets aren’t doing their job. But instead of engaging his argument, you just mock him. That’s a sign or either arrogance or intellectual weakness (or probably both). You need to grow up, get out of your idealistic academic shell, and stop ignoring the obvious — that companies aren’t philanthropic organizations, that they do have fiduciary responsibilities, and that things like returns on investment are what drive most innovation, not goodwill.
Apparently I’m not insane (or, at least I’m not alone). Michael Crichton sees a similar problem with genetic patents. The stakes for that are a bit higher (i.e., people will die), but the concept is the same. Silly patents are harmful to society, but good for companies.
Whether or not my proposal is the right solution isn’t the important takeaway message. There’s a problem with the way the patent system is set up. It needs to be solved.