Patent Gridlock - The Tragedy of the Anticommons

I ran into an interesting post on Slashdot referencing an article from the New Yorker that fairly succinctly describes some of the issues I have been having with the current systems and methods we have for handling intellectual property here in the United States. For these kind of sentiments to show up in the popular media, especially outside of the community of folks actively involved in intellectual property issues, really demonstrates the severity of the problem.

To quickly summarize the article, the author suggests that the current patent system is causing an innovation 'gridlock' by encumbering new products and innovations with multiple claims of partial infringement by different holders of existing patents. Now in some sense, this is actually how the system in supposed to operate - if I develop a product that relies on some technology you have developed I am supposed to compensate you in some way for using your work. Unfortunately, because the USPTO has made a practice in the last twenty years of granting patents with increasingly broad claim coverage and granting rights to technologies that do not exist and cannot be built at the current time, the claims of partial interest are so complicated and numerous that the new innovation is doomed before it can even be brought to market. Thus the tragedy of the anticommons.

This problem is further exacerbated by the 'patent trolls' who file for patents on technologies they never intend to bring to market in the hope of extorting a toll on any company unlucky enough to actually bring a potentially infringing product to the marketplace.

I have a couple of suggestions to address this problem, none of which is likely to ever see the light of day. My skepticism regarding implementation does not prevent me from sharing them, however:

* require a functional prototype before granting a patent
* disallow business method patents
* restrict the scope of allowable claims to those demonstrated by the prototype
* require companies to enforce their claims in a timely fashion - if there is no claim as to infringement within 6 months of a potential violation that specific infringer and that infringer alone cannot be penalized
* restrict copyright to a 7 year term which can be renewed for another 7 years at a significant cost

These changes would go some way towards patching the current system, but it should be clear that some serious thought needs to be done regarding how we can fairly handle intellectual property issues in an environment that is, after all, very different from the one the current system was built to address in 1790.

Are Software Patents On Shaky Ground?

For those of us who work with the US intellectual property system on a regular basis, it is pretty clear that there are some fairly serious systemic problems. Interestingly enough, it seems that the USPTO may be rethinking its position on software patents, specifically as a way to discourage the 'patent trolls'. A patent troll, I might add, is the ancient and hereditary enemy of the intellectual property gnomes.

It looks to me and some others that there may be fewer, higher quality software patents in the USPTO's future, and from my perspective this is a 'good thing' indeed. The system cannot work when choked by an undigestible mass of low quality software patents, so anything to stem the tide should be applauded. It remains to be seen, however, whether these relatively minor adjustments will be enough to save the system. Patents on gene sequences, software patents, 'futurist patents' (patents on inventions no one actually knows how to build now but may be possible later), and more all raise serious questions about how and if a rational, fair, and efficient intellectual property system can be built.