And Some Answers
Here are four important questions for the innovation economy and our answers.
What is the impact of the "informationization" of invention?
On any given week over 85% of newly granted patents have some element of information technology. Whether it is a patent granted for semiconductors, games, surgery inventions, or internal combustion engines, there is information technology in there somewhere. Unlike chemistry, microbiology, aeronautics and other inventive domains steeped in hard science with their own specialized vocabulary and domain expertise, information technology is a fast evolving, dynamic, and, in many ways, ill-defined arena for inventions.
The problem with "informationization" of invention is that patents are essential in protecting innovation but there is much discord on what is an invention and what isn't, and how to protect them when information technology and its essence, software, is involved. People forget that smartphones, the technical equivalent of a 1970s mainframe, are a relatively new invention. Most inventors, entrepreneurs, and VCs wouldn’t be caught dead walking into a meeting with their Palm Pilot today but most of the patents on the inventions that made the Palm Pilot and other personal digital assistants possible are still enforceable. Twenty years is a long time for information technology.
Can we use copyright for software instead of patents?
Many in the innovation class who are patent haters want to remove patent protection for software and use copyright protection instead. (New Zealand just did it.) On the surface, this is a simple approach because people put copyright notices in their software anyway. But there is a deeper problem. Patents last for 20 years from the filing date of a patent application. Copyright on works with corporate authorship endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. And the validity of a patent can be challenged by presenting a new substantial question of patentability to USPTO or by challenging the validity of a patent in court.
Imagine the impact on innovation if all you had to do to go after a competitor was to find a section of code that was the same as one in your core product? How much code that finds its way into software "inventions" comes from code sharing or collaborative works? It seems contrary to the nature of how software is built these days. Look at some of the major battles over copyright to see where this could wind up if software was subject to a copyright challenge. If a musician can go after the creator of a music mash up for the use of eight or nine notes, how granular would the war be over software code?
USPTO has put forth a really good idea to solve the problem. Make the inventors provide pseudo code that explains how the invention will work. This means that serious inventors of innovative processes can explain their invention is new, useful, and patentable. It removes the white board only practitioners from the equation. A flow chart isn’t an invention. A novel way of solving a problem that uses information technology is.
What about patent trolls?
Patent monetization and patent trolls have been around as long as patents. The real issue here is that no one knows how to define where the legitimate evolution of technology markets, with a wide and developing range of useful intermediaries, ends and where undesirable behavior (troll-ism) that puts innovation at risk commences. Or more generally, sometimes the buying and selling and licensing of patents is a good thing and other times it is not and no one really knows where the line between good and bad is.
The market for intangible assets and intellectual capital is growing. Patent protects that knowledge and drive the global innovation economy. Patent monetization entities, the latest addition to the vocabulary on businesses that make money off patents, are interested in the exclusionary right that a patent confers and not in the underlying knowledge. Until they are interested in the knowledge. Informationization of innovation is driving this market as well. Even the previously sainted universities have entered the patent troll game (Carnegie Mellon and Boston University prominently) while law school scholars write about the evil of troll behavior.
So how do you fix the patent system?
You fix the patents.
You make them easier to understand and easier to find. You create tools that people who create new businesses and new products can use to figure out what they can patent themselves, whose patents they need to license and what inventions are free to use. After all, the deal with a patent is that an inventor exchanges disclosure of an invention for an exclusive right to preventing others from using it for twenty years. Make inventors disclose the invention. Everyone who buys something on Amazon or the iTunes store using the one click feature has used the patented single action ordering system.
Better information, easier ways to find patents and figure out who owns what patent, making inventors put real addresses on their patents not uninhabited islands that they just happen to own will go a long way.
Another important change would be to actively encourage everyone to read patents. But the rules of the patentsphere on disclosure make this almost impossible. Right now the folks most likely to have access to really relevant prior art are told NOT to read patents. There are a host of issues about inventors being aware of a patent and not disclosing it to the examiner which might result in a patent being invalidated years down the line. What this leads to is an entire industry of simultaneous translators. People who do the actual reading of the patents and then act as intermediaries between inventors and the rest of the patent apparatus criticus. So the folks most likely to have a trade publication, a presentation at a learned society, or a manual for an old product that might be prior art don't read patents. Each week there are 6,000+ new patents representing an average of 94,000+ inventions (claims). Letting the smart people in the room, the inventors, (an product managers, entrepreneurs, investors) read patents would improve the quality of the patents, cut out the intermediaries, eliminate redundant patenting activity, make for a more informed exchange with patent examiners, and help get to a more rational patent system. USPTO and the patent cognoscenti need to figure out a way to let more people read patents without running the risk of being charged with inequitable conduct years later.
Way Better Patents is working to create access to patent information so that today's inventors, business people, product managers, and investors can find the amazing things people invent and put them to work (and stop hating patents.)