Centerfield

Today's Intellectual Propery Lawyers Doing Yet Another Landgrab

Throughout the settling of the United States, it was been customary for lawyers to grab in law offices what settlers have built with long work.

It continues today, in today's intellectual frontiers. Mind you, I don't believe that's their primary motive. Rather, I think they like to paid, so intellectual property lawyers promote the idea that patents are vital to corporate operation and look good on engineers' resumes. They've successfully promoted the patent equivalant of MAD - big companies accumulate thousands of patents. I'm skepical of the necessity, much less the helpfulness to the public, of big corporate patent clouds - see below.

The opportunity to grab existing work has been created by our patent office, by its negligent treatment of patent applications. For almost all my professional career, USPTO internal incentives have encouraged granting as many patents as possible. I've read five computer-related patents on otherwise radically different subjects and types, that have come to my attention different ways. Not one should have been granted. All had easily-findable and/or widely deployed prior art, like the Vonage patents I wrote about here.

So, is it worth it for companies to pay the huge bills patent clouds rack up? I think not. For offense, you only need a handful of solid patents. For defense against other chaps with clouds, the nonnovelty of most patents means they're a natural weak point. That's where you should work, both suing to have as much of the patent revoked as possible and suing for fraud for filing for a bad patent. You could also consider trying to sue the patent office for negligence. Patent attorneys like to imply that lots of patents help you in court because you have every angle covered, but all you need is one really good angle (see handful of solid patents, above). And, the bar to have your case listened to in the United States by a court is pretty low.

This is compounded by the absurdly long expiration time of most patents. Intellectual Property lawyers love to lobby for longer and longer patent and copyright expiration times (we all know the Mouse will never be free). But, really, that mostly only helps THEM, because it gives them more work to do - more patents to manage, sell, and buy in the form of patent troll corporations that live to sue, not innovate. They should be limited to the industrial product cycle length - 1-2 years for software, 2 for computers, long times for drugs.

A decided minority of engineers think modern patent and copyright terms are reasonable. But, of course, the IP lawyers are much better-represented in Congress, to say the least. I've been reluctant to take out patents as an employee, because I could find it used against me 15-20 years hence, after we've gone to nanotech and today's innovations are are about as innovative and set in stone as the Egyptian Sphinx.

Let's take a look at patent clouds from the point of view of public interest. Of course, you have be big to play. But, of course, it' always been true that small innovators are generally the most effective. Even in mature industries, small startups start with the sole goal of selling an innovation to a big company. Small innovators have trouble even affording to pay legal bills, much less amass the kind of patent cloud you need for MAD. So patent clouds do alot of harm to the public interest by discouraging many of the majority of innovations delivered by small companies.

Another issue is software patents. IMHO, they shouldn't exist, because they amount to patenting thoughts. The USPTO also lets you patent business plans. And, think of the trouble to be had (and the tons of IP lawyers bills, yum, yum), to be had in suddenly allowing patents in a field not considered patentable. The USPTO didn't care about niggling details like existing Supreme Court caselaw when they started issuing software and business patents (!!). A patent lawyer has just written a post in fear, though, that US software patents may be weakened (hope, hope!).

Still another problem small innovators face is corruptly big discovery bills. That balloons legal costs associated with patent and other civil suits enormously.

There are good guys in this fight. The modern equivalent of the Southern Poverty Law Center is the Software Freedom Law Center (way to go, guys!). But they're vastly outnumbered by scum like David Boies' huge IP practice; the proportion of good to bad seems worse to me than in the general populace. A good blog to read on related issues is Groklaw, started to cover a multiyear copyright infringement case brought by a non-holder of the copyright they were suing about. More good guys on the lobbying front include the Electronic Frontier Foundation. The Free Software Foundation is also on the right side, succeeding in freeing alot of software from many of these problems, but probably sets us back PR-wise, because their public arguments presume you're already on their side.