Once again: place yourself in the shoes of an independent engineer who works up a design or method innovation but has to go against big players. The only thing he/she has to offer to an investor as a collateral is right to the IP. The more serious the consequence of an IP fight in a court, the higher is the value of the innovation.
It really is the only defensive mechanism and a source of value. Trade secrets won't help you with realizing the value enough to have an investor take a risk.
Sure, there is abuse in the system, there are worthless patents, onerous process to get one, and mistakes are routinely patented.
But then, do you want to take a guess on how much useless content exists in open/non-patented academic journals or technical press? I don't but I can tell you, it takes an expert to tell the real advance from a large number of useless publications. Patents are no different, they need experts to tell you which ones will hold against challenge, which ones are blocking. And just like (unpatented and open) academic publications, their value is seen only when put to practical test, despite their 'claims'.
So, really I don't understand what the outrage is about. The system is not discriminatory, it even gives you a one year headstart without excessive costs to realize the value from an invention.
It does force you to write in a certain way -- most technical publications will do that well based on the local community culture -- and provides the only source data in an adversarial setting where the parties at cross purposes will end up anyway, not because there is a patent.
Just to appreciate what lack of an enforceable patent system will do, try taking your ideas in societies with little or no IP rights enforcements and make a business, especially against established companies... no wonder googles, yahoos, intels, oracles and microsofts happen here more often than any other place and are routinely replaced by even younger raw talent, at the root of it all is an enforceable IP protection regime.
Here's another email comment a reader has given me permission to add to this thread:
We all have a choice as professional engineers. We can accept the fact that security is a major part of working for someone else and along with that security comes the fact that design ideas belong to the company. Or, you decide to work for yourself, keep your ideas as your own and pay all the application, filing and maintenance fees associated with your ideas. This later statement holds true for your good ideas that don't make financial sense, your marginal ideas that need to be patented for protection in your market and your truly important ideas. I don't think there is an appreciation for the fact that in most companies there is a 90% business aspect to IP and a 10% engineering aspect.
Ken Shuey, Fellow Engineer, Elster Electricity
Your point, though extreme, is well made. Personally, I've been quietly doing just this since Amazon was awarded its "one-click" patent. That was proof enough to me that patents in this country are no longer a sign of engineering prowess, but of a lawyer's skill in manipulating the system. As a cog in the big machine, patents are of no value to me personally.
I've worked in a number of medium to HUGE corporations, and universally the engineer unfortunate enough to generate an idea the corporation thinks is patentable (regardless of its true merits) is made to work lots of extra hours on the patent application, with little or no compensation. The largest compensation I've seen for a patent award is $3000 and a plaque.
Of course, for the lone inventor or small shop, this doesn't work. They have no protection without a patent, and precious little protection with a bulletproof patent for something truly novel and non-obvious.
The things we could do to fix the system are many and varied, but I think first and foremost eliminate all "business methods" and software patents. Then the examiners can focus their limited time on actual inventions, and the obvious and not-novel will be found and eliminated that much quicker.
I am pasting in here (with permission) an email comment from a reader:
Dear Rick, Your article is long overdue. The patent system no longer serves the very people doing the innovation that the rest of the world benefits from. I?ve often wondered why there isn?t some engineering guild that wields the collective power that engineers hold. We build the machines that run the world. That counts for something, and our collective voice needs to be heard. Anyone who has read Ayn Rand?s ?Atlas Shrugged? knows what I?m talking about. So the question is: how do we get there?
Anyways thanks for the article. John Manfreda; Troy, Mich.
Well said. Patents have no place at all in my part of the industry (software engineering).
My company won't be filing any patents this year. Instead, our open source business model is proving quite satisfactory.
In total agreeance. The situation makes me think of the crazy tax code, and a recent quote from Obama.
"We need to simplify a monstrous tax code that is far too complicated for most Americans to understand, but just complicated enough for the insiders who know how to game the system,"
I think you could make a similar comment about the patent system. Hopefully Obama can bring some common sense reform to that area too.
Dear Askibum: What's worse, many people try to exopand and strong out their patents by adding all sorts of claims and contunations to them...then when the patent office tries to limit these continuations, they get smacked with a suit saying they are oversteping their bounds...go figure!
Prof Gupta: Patents are only one way to secure IP. Copyrights and trade secrets are also available, and have the huge advantage that they're free and don't need lawyers to obtain them. Regarding your comment that we must pay a price for the rule of law: there comes a point when the price we pay starts to look more like extortion than a fair user fee. When a non-practicing entity (NPE) threatens an individual or company with a huge stack of dubious patents hoping that the latter will settle rather than fight, that seems like extortion to me.
azskibum: You are absolutely right that patents need a higher threshold of innovation. I think patents should be reserved for truly brilliant ideas which cause a practitioner of the art to say "Wow! I wish I had thought of that". Many inventions are natural consequences of improved technology and would have been invented by someone else within a short period of time. Some are just a kludge to get around a limitation of an earlier implementation and have no business being awarded a patent.
Here are some ideas to consider: (1) Limit drastically the number of patents per year that are considered in each area, and have a committee of experts who decide which are considered "truly brilliant" and can be awarded. (2) Allow awarding costs to the losing party in an infrigement suit. This would discourage NPEs from entering into suits that they would lose and would allow their targets to call their bluff. (3) As with copyrights, have patents go public domain if their owners don't defend them in a timely manner. That prevents a company like Microsoft from waging a FUD campaign against Linux. If you have a case, go for it. If not, stop pretending that you have one. It also prevents an NPE from resurrecting an old patent about to expire and sueing for past damages. (4) If you have a patent, you must use it in a timely manner or it goes public domain. This prevents a company from buying and then suppressing an innovative competitive technology. (After all, patents are supposed to encourage innovation and serve the public interest, right?)
I disagree with the idea of eliminating patents altogether, but I believe real reform must include establishing a threshold of innovation, so that every patent granted truly represents an invention -- an advancement of the state of the art. Too many patents are granted that are essentially regurgitations of patents already issued, sometimes long after the original monopoly period has expired. Others simply take an existing patent or patents and add an application that the original inventor may have assumed was obvious to those skilled in the art. Then the new "inventor" or his assignee is free to use this bogus new "invention" against the original inventor, the one who truly did advance the state of the art.
An engineer working with a good patent agent or lawyer could make a career out of re-patenting other people's patents by re-wording them and adding some not-so-innovative claims that the original inventor overlooked, or again, assumed were obvious to those skilled in the art. If that doesn't define a broken intellectual property system, I don't know what does.