If you believe the hype, the “patent wars” are well and truly underway.
Google announced last week it will buy Motorola Mobility to get access to 15,000 of the handset manufacturer’s patents and HTC, Apple, Samsung and others have been suing one another over alleged breaches of patents.
But we should question fashionable rhetoric about “patent wars”, including claims that litigation by major corporations over patent rights is unprecedented, is grossly pernicious or an indication that the patent system is broken.
The first question here being: what are patents?
Simply, patents are a legal mechanism for the encouragement of innovation. The aim is to benefit society by providing an incentive for invention and investment, with inventors (and financiers) gaining exclusive commercial rights to a particular innovation for 20 years.
In return for those rights, society gains access to information about the innovation, offering a springboard for future development.
Some patents are trivial, even laughable, such as the horse-drawn amphibious taxi or umbrella hat that have amused several generations of law students.
Other patents are fundamental, covering the pharmaceuticals and electronics that we take for granted.
Australian patent law forms part of an international regime – currently the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – and has done so since before federation.
Our participation in that regime is a reminder that globalisation isn’t new: trade, investment and research have been taking place across borders for more than a century.
Individual researchers and institutions may choose not to seek patent protection, instead placing discovering in the public domain and forgoing revenue opportunities.
But that choice is likely to be increasingly difficult, as an ageing population results in increased welfare spending at the expense of government support for pure and applied research.
Disagreements about patent law and about the best ways to foster creativity date from the time of the Tudors.
Laments about the wickedness of investors, the avarice of inventors and abuse by patent lawyers are perennial. They are a feature of the ongoing culture wars that are an inescapable and unresolvable aspect of modernity.
There is then, in this sense, nothing new.
In Australia
Australian law is predicated on the notion that individuals and corporations will resolve disagreements through negotiation or the courts.
While the news has been full of tech giants suing one another of late, litigation does not signify an imminent collapse of patent law. Rather, it’s a sign of business as usual.
In fact, despite increased reports of litigation of late, Australian courts, government agencies – such as the Productivity Commission and Australian Competition & Consumer Commission – and independent bodies such as the Intellectual Property Research Institute of Australia have not identified an explosion in patent litigation.
They have not expressed fundamental concern that major holders are abusing the law through coercive litigation against potential market entrants or through egregious rent-seeking.
Businesses are instead doing what businesses do: seeking to maximise their advantage in a competitive environment.
To paraphrase Shakespeare, the fault is with ourselves – the shape of business and innovation in liberal democratic states – rather than with patent law.
It is often a long and expensive journey from the lab bench to the blister pack containing lifesaving medications or the must-have tool such as a mobile phone.
Contrary to popular images of an Einstein-like figure with a succession of eureka moments in the garage or garden shed, most innovation is an industrial process that involves a hard grind and teams of innovators rather than individuals.
(Thomas Edison, often characterised as the archetypal inventor, in reality mugged for the cameras while hundreds of his employees got on with research behind the scenes.)
Numerous organisations have invented brilliantly but languished commercially, despite their patent portfolios and the very best patent lawyers money could buy, because their executives were inept or self-involved and their production or after-sales service was poor.
Tech companies
From that perspective, we might be cautious in accepting recent alarms about Google’s much-publicised acquisition of Motorola patents, hyperbole about gene patenting or expressions of “declinism” such as claims China is out-patenting (rather than merely out-manufacturing) the US.
Some patents are junk. They have no real value or won’t stand up if contested in court. Many of the patents in corporate or private equity portfolios won’t be commercially significant and won’t be used to stifle competition.
Yes, China’s patent registrations are rising but yes, analysts also question the credibility of many registrations.
Unlike death and taxes, success with a patent isn’t a certainty. In looking beyond the headlines and soundbites we would do well to remember that patents do not last forever – they have a finite life.
Today’s patent is next year’s footnote, not fetters permanently restricting research and public benefit.
Unfortunately, that reality doesn’t make for good headlines.
Will Uther
Artificial Intelligence Researcher at University of New South Wales
This article misses the points that most (knowledgeable) people I know complain about when they complain about patents. You say, "Simply, patents are a legal mechanism for the encouragement of innovation." But are patents a *good* system?
To answer that question requires defining "good". Many people nowdays use economic criteria for that, but those aren't the only possible criteria. Of the economic studies I've seen of patents suggest that their applicability varies wildly between domains…
Read moreJulian Alexander
Can't be blank
The issues that are generating the deserved attention seem specific to US software patent law. This American Life <a href="http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack">covered this issue</a> (<a href="http://www.thisamericanlife.org/radio-archives/episode/441/transcript">transcript here</a>) in a way that is perhaps more applicable to understanding the recent Google acquisition. Or perhaps google's own blog posts: <a href="http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html>When patents attack android</a>
Contrary to this article it doesn't seem a particularly healthy sign that such resources are being dedicated to patent defence of products already released and not product development.
Julian Alexander
Can't be blank
Sorry, links in comments don't appear to work.
This American Life: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack
Transcript: http://www.thisamericanlife.org/radio-archives/episode/441/transcript
Google's blog post: http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html
Paula Chavez
activist
I have spent over six years writing patent applications for Motorola Mobility (approx. 250). I for one am extremely happy about the purchase of Motorola by Google. In the phone business, all the players have large patent portfolios. I personally know the patent attorneys of the patent department at Motorola Mobility and I find them all to be honest and dedicated professionals. Over the years, I spoke with hundreds of very bright inventors at Motorola - and they are truly innovative. I have always…
Read moreWill Uther
Artificial Intelligence Researcher at University of New South Wales
"I guess Dr Uther, you don't remember Jerry Lemelson and submarine patents."
I have heard about this, but I'm unclear as to your point. Someone abused the patent system in a particular way, and the law was changed to improve the patent system. That does not mean that the patent system is now perfect and further improvements cannot be suggested.
"The reason software is patentable in the US is because about 20 years ago, the lawmakers found that copyright was inadequate to protect software."
I…
Read morePaula Chavez
activist
Before Jerry Lemelson, there was no 20 year limit - so we can be thankful that there is now, even if you think 20 years is too long. People would argue that Jerry abused the system - in fact he was well within the law to do what he did. If someone finds a tax loophole and uses it - and is well within the law - is she a villain. An abuser? I don't think any commenter here has suggested that the patent system is without problems.
We were patenting software before you could patent software…
Read moreBruce Baer Arnold
Lecturer in Law at University of Canberra
The gist of the article is that we should question the hyperbole about 'the patent wars' and about the innate wickedness (or virtue) of patents. There are questions about public policy objectives/outcomes and the implementation of patent law in relation to software and in relation to the life sciences. From a historical perspective those questions have been evident in debate among civil society activists, researchers, investors, legal theorists, economists and policymakers since at least the 1880s…
Read moreWill Uther
Artificial Intelligence Researcher at University of New South Wales
"The gist of the article is that we should question the hyperbole about 'the patent wars' and about the innate wickedness (or virtue) of patents."
I agree that one should always question hyperbole. Perhaps part of the issue here is that there are multiple debates about patents going on. The recent patent battles in the mobile phone space are a separate issue to the discussion about software patents.
The battle over software patents is more closely related to the discussion about business method…
Read moreDaniel Robinson
logged in via Twitter
It is true that many of these issues are as old as the sun, but there are newer aspects that make them more worrying. Litigation is more expensive now than it used to be. We've developed systems for putting together patent portfolios on such a scale that the litigation associated with them is massive and spells certain bankruptcy for all but the biggest companies to fight, no matter how tenuous the claim. When litigation (or more relevantly, the mere threat of litigation) becomes such a fundamental…
Read morePaula Chavez
activist
Agreed. More the case for small companies to build up strategic patent portfolios since the problem is not going away any time soon.
Australia, unfortunately has very poor participation in patent protection. http://theconversation.edu.au/australias-approach-to-intellectual-property-is-undermining-innovation-policy-274
There is no reason to go to a patent attorney to draft a patent application. It is something any educationed person can learn to do. Oddly, it has been suggested to me that…
Read moreKen Fabian
Mr
When it comes to the kinds of innovation we desperately need, I get uncomfortable with the use of patents to limit rather than widen access to new ideas. Lots of patented ideas go nowhere, often legitimately but sometimes that's because they are owned by interests who's real interests are elsewhere and development is hampered by lack of funding, bad management, poor implementation or just plain apathy. It might be the exception, but purchase of patents done in order to prevent new methods falling…
Read morePaula Chavez
activist
When I was in law school in the late 80's my antitrust professor, Eugene Crew, a famous US antitrust lawyer was litigating on behalf of an inventor who came up with a great energy saving light bulb (novel in those days) who patented it and then on the promise of best efforts to commercialise it sold the patent to a company (don't remember which) who promptly locked the patent away in a drawer and never commercialised it - I guess because it was too much better than their current technology. Unfortunately…
Read moreSimon Starr
Lawyer at Starrausten
I personally feel that patents are just an avenue for an innovator or a corporation to gain easy money. They can steal someone's idea (that sadly wasn't patented first) and have it patented under their own name and if someone else use that particular idea (which wasn't theirs in the first place) they can hire credible and conniving patent lawyers to sue the so-called culprit and earn really huge bucks! I think the term patent could be an entirely new industry or even an investment platform in the near future if it continues to be mis-used.