Ben Buckman.net

It seems like every time a tech company files a patent dispute these days, my immediate reaction is, that's ridiculous.

Facebook filed a patent recently for the "news feed." There was a great discussion on the latest TWiT about how ridiculous that is, basically how Mark Zuckerberg stole everything he's ever built. Apple filed a patent dispute against HTC for Google's Nexus One, and Nokia has done the same against Apple.

The purpose of patents is to incentivize innovation by giving inventors special rights to their creations. But none of these patents, if upheld, would spur innovation. There are several problems here:

1. The whole system is too slow. It takes years for patents to be approved, by then the patented innovation is not only in common use, it's been copied by every competitor and maybe even made obsolete. So if patents were upheld, countless products and services already purchased or used on a regular basis would legally (I presume) have to be thrown away. Maybe if patent review took a month, patents for brand new innovations would make more sense. But time-to-market has dropped significantly over the last century; the days when an inventor could conceive of an idea and successfully bring it to market five years later are long gone for most of the tech industry.

2. Tech today operates in an open system. Everyone benefits from copying, stealing, open-sourcing, and value-adding to their own and everyone else's innovations. Ideas succeed or fail in the market (of products or ideas) by winning over supporters, fans, customers, etc. The patent system seems to function as a kind of arbiter of great innovation, but in that role it's terribly outdated.

3. A lot of this stuff seems, especially by the time the patents are approved and litigated, to be obvious or inevitable. People imagined touch screens decades ago at least; to patent them (and prevent anyone else from building them) is absurd. Tools like RSS feeds may not have existed twenty years ago, but in the progression of the open web, they became an integral component. To restrict the use of such innovations by allowing one implementer (whoever filed a patent first) to monopolize its production, would only stifle true innovation.

4. It's not necessary. Apple would have made the iPad with or without any patents. They lock in intellectual property by building proprietary chips and closed-source software, and that's their prerogative. Other companies choose to innovate with open architectures, and that's great for them. Is there any player in tech (by which I mean broadly computing/internet/mobile/etc) that wouldn't innovate without patents?

It seems like patents do make sense, on the other hand, for products like the Bloom Box, and new energy in general. Billions of dollars of R&D go into these products, their time to market is years or decades, they would not exist if they could be legally reverse-engineered and copied a day after launch.

What about the in-between cases like new Blu-Ray type specs? Hard to say there, but I'm sure society would benefit more from open architectures in those sectors as well.

Patent law has a long history of which I know very little. I don't claim to be any kind of expert on these matters, and I'm sure a patent lawyer could dispute all my four points above with a stack of legal precedents. But it seems that the system as it applies to "tech" as commonly known is fundamentally broken and harmful to true innovation.

If Apple's patent dispute against Google is upheld, then I stand by my tweet from the other day:

I think either holders of absurd patents will be deterred by public shame or we'll just stop obeying. Something's gotta give.