SAN JOSE, Calif. – I’d like to offer a modest proposal to help cut through all the controversy around the value of patents. Simply put the documents on a scale, like grapes or ground beef, and pay the holder 50 cents per pound.
The proposal could save patent holders tens of millions of dollars in legal fees to say nothing of the time and effort in patent negotiations. Whole intellectual property departments could be streamlined, saving money for R&D.
I know this may seem like a radical proposal, but hear me out. It’s true, I am not an engineer, and I have never earned a single patent, but I have been to the sausage factory.
I covered calls for patent reform that spanned more than a decade. When a bill finally came no one was satisfied that they were significantly better off.
Later, I sat for weeks in the Apple vs. Samsung patent case. Two of the largest companies in the electronics industry brought some of the greatest litigators in intellectual property to bear on the questions in the case. They marshaled a small army of experts including some of the leading minds from academia, industry and standards groups.
I heard experts--some paid nearly a million dollars each--for their testimony make convincing cases one company infringed another company’s patent. The opposing side then brought equally pedigreed (and well paid) experts to testify exactly the opposite. At the end of the trail, the foreman (himself a veteran EE) said the jury threw out all the expert testimony because they could not trust people who were paid such high sums.
I left the case wondering how anyone can determine if a patent is valid or not, whether a product infringes a patent or not or whether a given patent is essential to a standard or not. There quite simply are no simple, clear tests a jury of anyone’s peers can apply to answer these questions decisively.
Well, well, such disrespect for the US Constitution.
In fact, the money spent in these court battles is like the money spent on election or defense. (I bet you think these are unnecessary too.) But when ideas can be freely copied from somewhere else, nobody will be so dumb as to pay good salaries to engineers.
Do you think, if you have a good idea, some big companied would just pay you for it, without the threat of a devastating law suit? Would you compete in today’s highly consolidated electronics market without a patent framework? Do you think a company like the early Qualcomm would have any chance without patent protection?
I understand you oversimplifying this in a "per pound" sausage meat comparison, but this is actually already done behind closed doors. Patent portfolios are all about horse trading. I've got 1000, you've got 600, you owe me x (where x is lower than the y you would owe if you had none). It is near impossible to evaluate every one of the 600 on merit and decide if infringement exists or not. That is how it works today. "per pound" would simply encourage people to write even more verbose legal speak than already exists in a filed patent - lawyers love their verbosity! As for Apple vs Samsung, well the foreman's comments/insights might well have that case thrown to the curb. Time will tell. Personally I think for patent disputes, the biggest issue is the "peers" part. Most patents are written by VERY smart people, generally with higher degrees. These people are literally at the cutting edge of their field and playing their A-game doing it. The intellect bar is pretty high. What is obvious, what is prior art and what is genius can only really be judged by a jury of similar minded individuals working with this stuff every day (read that as nano-electronics engineers/programmers also with PhD's from academics and industry who know this stuff well). None of this is helped by the obfuscated language used by lawyers within the patent filings - even the experts who came up with the ideas have trouble following this language.
The US Constitution only states that Congress should promulgate laws to protect inventors. The question at hand is "Who is the inventor?". An even more important question that is not being argued today is "What constitutes an invention?" Patent law today slices that second question far too thin, treading deeply into skill-of-the-art territory and creating all kinds of conflicts, conflicts which stem from what are really differences in engineering choices or even differences in describing the same engineering choice.
The first-to-file rule totally destroys the concept of invention. The very meaning of the term implies a race. A race means more than one competitor which means more than one person has the same solution to the same problem. That is not a unique invention. It is skill of the art.
I submit that the present patent system interferes with economic development and unnecessarily elevates the cost of living for all members of our society. IP protection is but one of many factors that determine success in business. In the extreme opposite situation, if there were no patents at all, new inventions would still be brought to market and people would still make money from being creative. It would just be done in a different, probably more efficient, manner. Everyone would benefit were legally protected IP truly unique.
The concept of the patent is to protect the inventor so the he or she will benefit from teaching everyone else how to do something they themselves cannot figure out. Society in general and every individual in particular wins. Protecting solutions to problems that anyone could figure out without assistance if they were only asked distorts the economics for everyone.
I am as opposed as anyone else, to the ridiculousness of many of the much-hyped patent litigation cases. But quite honestly, in this era in which developed countries have gotten away from manufacturing to such a large extent, rights to your intellectual property is pretty much all we have left.
It's easier when your IP ends up in a wigit that you manufacture. The simple fact is, that model doesn't work anymore. So scoff all you like, guys, but what do we have left?
You hit the nail on the head with "What constitutes an invention?" Something that seems innovative to a layman is often, as you said, just differences in engineering choices, or minor tweaks to an existing invention that are obvious to those skilled in the art but not claimed by the patent on the earlier invention.
In summarizing the problem, I would modify your last sentence as follows: "Protecting solutions to problems that anyone could or already has figured out without assistance distorts the economics for everyone."
There is a rigorous process to determine what an invention is. It may not be perfect but beats “in my head a long time ago” or “obvious by hindsight” by far. Some engineering options can lead to unexpected results and make a lot of money for the business. These are worth protecting while theories are not. If monopolies don’t explore these options, startups will, and do it with the protection of the US patent law. This is why US is still innovating. It is misguided for engineers to join the chorus for weakening the US patent system. For when that is gone, you will be living in a dorm with anti-suicide net around it.
As the CTO of an electronics startup, I would be quite happy to see patents abolished. They are a game at best, and a diversion from really pertinent innovation. As to "what do we have left?", the answer is our wits, our ability to actually execute the great idea, and the effectiveness of the team of people who are going to do it (or not). There is greater value there than in a court fight.
Well, you could see where is the US innovation today, that has to do somewhat how inventors get gratified for their work,since in most cases they get much less than the lawyer who files the patent with the patent office.
David Patterson, known for his pioneering research that led to RAID, clusters and more, is part of a team at UC Berkeley that recently made its RISC-V processor architecture an open source hardware offering. We talk with Patterson and one of his colleagues behind the effort about the opportunities they see, what new kinds of designs they hope to enable and what it means for today’s commercial processor giants such as Intel, ARM and Imagination Technologies.