The failing US patent system is getting ever more mainstream – The New York Times is running a long and details piece on the failings of the system, especially in relation to the technology industry most of us hold so dearly. Most of the stuff in there isn’t new to us – but there’s two things in the article I want to highlight.
First, if you were wondering just how much of a burden the patent system has become on the technology industry, consider this bit of knowledge:
In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years â€” an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.
In other words, if we spent all the money wasted on the patent system on useful things like going into space, we could’ve already thawed Charon to see if there’s a relay in there. In all seriousness, this should silence those who claim the patent mess has little to no effect on regular consumers; it’s highly unlikely such massive costs are not, in some way, recouped through consumers’ wallets.
Further driving this point home:
Patents for software and some kinds of electronics, particularly smartphones, are now so problematic that they contribute to a so-called patent tax that adds as much as 20 percent to companies’ research and development costs, according to a study conducted last year by two Boston University professors.
Second, I want to address a part of the article that highlights just how out of touch with reality certain groups of people have become. Consider this:
“Intellectual property is property, just like a house, and its owners deserve protection,” said Jay P. Kesan, a law professor at the University of Illinois. “We have rules in place, and they’re getting better.
“And if someone gets a bad patent, so what?” he said. “You can request a re-examination. You can go to court to invalidate the patent. Even rules that need improvements are better than no rules at all.”
This insipid sentiment is one you hear often from people who clearly have little to no experience with what the real world is like. Academics, lawyers, politicians, government officials, higher-ranking company executives – they live in a world where theory is more important than practice, or where millions and billions of dollars are just another set of zeros on a piece of paper.
They don’t realise that for 99% of companies out there, the practice of challenging or invalidating a patent is very different from the theory. They don’t realise that for 99% of the companies out there, millions and billions of dollars are not just another set of zeros – they represent entire companies, and thus, livelihoods.
Mr Kesan may be a law professor at the University of Illinois, but anybody who waves the problems of the patent system away with a simple “just challenge/invalidate it” is spouting uninformed nonsense. Do you really think a small company – and most companies in the world are small – stands any change of fighting Apple, Microsoft, or Google in a court of law? Most companies can barely afford to screen for existing patents, let alone challenge or even invalidate one!
And even if they do manage to invalidate a patent, patent abusers like Microsoft and Apple have thousands upon thousands of other obscure patents to pick from and start the court process all over again – as long as it takes to bring the small company to its knees, burying it in legal fees and court bureaucracy until it can’t do anything else but give in, maybe even bankrupting it in the process.
As long as people like Mr Kesan are relied on for guidance on how to fix the patent system, we won’t be getting anywhere, that’s for sure.