Patent Rant

Since I (reluctantly) have about a dozen patents, and let myself get irked by all the uninformed blathering about "protecting ideas" and patents as "intellectual property" by people who've never had to deal with the f***ing things, I read many books and articles about patents and copyright, including some of the economic and scholarly literature.

I'm still undecided about copyright - a person who identically copies another person's work isn't bringing much to the party. There should be tools that make creating valuable new works much easier (and some forms of plagiarism actually help with that), and foster collaborative construction (reducing the burden on individual creators) and result in a quick burst of high compensation followed by rapid transition to the public domain. Don't know how to do the last, but Free/Open Source Software collaborations are bringing the other problems closer to excellent solutions.

In the land of patents, the societal and individual benefits are far less real, mostly negative.

I'm currently reading Bessen and Meurer's "Patent Failure", which focuses on the poor "notice" and "boundary" aspects of the patent system. The only person on the planet who can decide whether a US patent has been violated is a federal appeals court judge; even a team of engineers and lawyers can't read a patent claim as currently written and decide whether it applies to their own products.

Patents are mine fields, and claims are mines, hidden intellectual antipersonnel weapons. They directly damage only a small set of people - the inventors and entrepreneurs whom we inventors would otherwise call our friends. They indirectly harm everyone, since we all could benefit from the unexpected combination of good ideas, and products that interoperate.

Patents make sense in the pharmaceutical industry, where the originator of a new drug has to go through hugely expensive discovery work and clinical trials, while followers only have to copy a formula, at a small fraction of the original cost. Patents allow originators to recoup their huge investment through a high priced monopoly.

That could be fixed without patents, instead working through the same regulatory process that makes the trials expensive. If you want to copy a drug, you either must (1) repeat the expensive trials, or (2) "buy" the entire cost of the original trials from the original manufacturer/inventor. (1) means we get to learn new things about existing drugs (aspirin kills thousands of people a year), while (2) gives the originator the capital to discover new drugs. The second manufacturer can sell the right to a third manufacturer, and so forth.

But aside from pharmaceuticals, recent research shows that there is no societal benefit, and no individual benefit (on average) to the current patent system. Yes, we read about big patent lawsuit awards, but these lawsuits are hugely expensive and uncertain, most lose. For every litigious bastard like Lemelson or Kearns or Jobs, there are hundreds of thousands of patent owners who lose their shirts.

Only a tiny fraction of patents make money. The drumbeat "get a patent and get rich" misinforms most inventors, who think that the tens of thousands of dollars spent negotiating the patent system and paying maintenance fees are a sure road to wealth. Mostly, patents transfer money from small inventors to patent lawyers and the government, for little useful return.

In fact, the way to make money on a new idea is to work with manufacturers to get something produced, and sell lots of them. Making any modern product involves thousands of processes and ideas, any one of which might be covered by a patent claim buried in the millions of pages of patent claims currently in force. In the current climate, a manufacturer would have to be insane to risk producing something new, and accidentally stumbling across one of those hidden claims, rather than doing the safe thing and making the same old stuff, perhaps a little bigger or more showy or better advertised.

I have licensed products, and get some money from manufacturers. The patents come with the products, but what my customers are actually buying from me is knowledge and expertise. I'm thrilled to help them, and deeply honored to work with reputable organizations that honor their contracts. I spend hundreds of hours learning their processes, and adapting my ideas to them. Indirectly, they are buying some "protection" from other patent trolls who might patent some variation on my ideas, then come after them for doing something they have done for years. It is cheaper to pay me for my minefield, than to risk someone else planting mines in their manufacturing process. And if you think that their prior work or mine protects them from the expense and possible success of nuisance lawsuits, you haven't been following the news. The patent system is driven by judicial whim, not the law as written.

The reason iPhones and iPads are considered great products is because Apple's lawyers attack those who would evolve better ones. As a product inventor, I can assure you that my thousands of inventive colleagues and I could do a hell of a lot better, if we were free to do so, and you were free to choose our products. In a free market, Apple would be a minor player.

While government oversight might be useful in this area, in fact governments are run by ... lawyers. Who on average, aren't going to break their own rice bowls to make the world easier for the same "nerds" they tormented in grade school. There are some wonderful exceptions, but the exceptions aren't numerous enough to pass enlightened legislation. Making up fables is easier; that's how they win court cases, and elections.

Unlike copyright, covering works easily duplicated with common tools, no patent can be violated without being seriously creative. If you want to copy one of my integrated circuit patents, you've got to do a lot of work and be very smart (unless you get a copy of the design itself, which violates copyright!). You've got to be as smart and well trained as I am. In other words, you've got to be a lot like me. And why the HELL does the public, and the government they elect, think I want to attack and penalize smart and well trained people like myself? I'd rather buy them a beer, not take them to court! But I live in a world that forces me to attack the people I would otherwise cherish.

Perhaps in some sick way, the system is working exactly as some cabal of psychopathic anti-technologists intend. We are legally/economically not allowed to mix and deploy the best ideas. Individual innovators are strongly discouraged from sharing and collaborating. That disempowers innovators, drives the humane ones out of the field, and slows the improvement of technology.

But never blame on malice what can be adequately explained by stupidity. We allow the patent nightmare to go on because few people learn enough to innovate, we reward children for attacking "nerds" and "geeks", and generally treat ignorance as a virtue. At least in the United States, which may soon be crushed by cultures that value and encourage technologists rather than lawyers. You learn by copying, then improving (biological evolution works this way, God uses only the best ideas). That is how the US became great, that is what Japan and Taiwan learned to do, and that is what China and India are learning. No US patents will stop them, and if they were truly evil they would use our own disfunctional patent system to stop us.

Let's fix (unlikely) or discard (if necessary) our patent system, reward collaboration, and learn to be an innovative nation again. Invention comes from interaction and combination. With seven billion potential collaborators on this planet, vast wealth is possible.