The US Patent System Is Killing Innovation

HTC sued Apple over mobile patents today. Again. Pretty soon Apple will likely sue them back. Again. Shrug. Throw it on the pile. And while the patent Cold War continues to heat up, weep for the real casualty: innovation.

I'm not a lawyer. Hell, the last time I watched Law & Order, Jerry Orbach was still flashing badges. But I am someone who's watched the tech industry eat away at itself for years now, playing the world's most expensive tower defense game with bought and sold ideas. Patents are hoarded like gold and brandished like swords. Which would be fine and good, if they were protecting old products and not destroying the new ones.

As we've said before, the problem today isn't really good ol' fashioned patent trolls. They're shakedown artists, sure, and that's despicable, but at the end of the day all they really want is money. Money that could be better spent by the big boys on R&D, sure, but the Lodsys types are a gnat.

The lawsuits that Apple and HTC and Samsung and Nokia and everyone else with skin in the mobile game are throwing at each other, though? Those are dangerous. They're dangerous because Apple doesn't want cash; they've got more than the entire US government. Neither does anyone else, really. What they're all gunning for is market advantage. Which, in the most extreme case, means pulling the Galaxy Tab 10.1 off EU and Aussie shelves altogether. They're not playing Monopoly anymore. They're playing Highlander.

I spoke with Venture Capitalist and author of the influential tech blog Above the Crowd Bill Gurley, who pointed out that "The [patent] Cold War aspect basically defines certain markets as 'out of bounds.' You can't do mobile OS now. CPU is likely tough. Video CODECs are a mess." Three crucial areas, cut off from from disruptive progress because of our system's failings.

And that's just one consideration. Gurley also noted that equally important factors—non-operating patent filers (the aforementioned trolls) and the patenting of business processes—have done every bit as much to stymie innovation.

So why have we gone off the deep end? Why are smartphones an afterthought when Google pays billions of dollars for Motorola's mobile business? Why can't a company even blink a new tablet without lawyers pounding down the door?

Simply put, and thoroughly laid bare by Nilay Patel over at TIMN, software patents aren't a real thing. Or rather, they're classified in a way that's totally counter to their actual function, leaving enough of a grey area that nearly anybody can sue over nearly anything. And, as Apple showed when they blocked the Galaxy Tab, they can win.

Billionaire Dallas Mavericks owner (and one of the biggest winners of the late-90s tech bubble) Mark Cuban recently suggested that we just scrap software patents altogether. A better answer is probably to write specific language into patent law to cover the unique properties of software. As for litigation, Gurley recommends moving to a system—similar to what the UK and France already have in place—where the losing party pays. That would, ideally, head off countless baseless suits at the pass.

Again, I'm no Sam Waterston. I just know who gets hurt in the broken system we have now. And it's a long list:

• Small start-ups who either shy away from improving on products in litigious areas, get sued into oblivion before they can actualize a great idea, or get bought up solely for their intellectual property—which ends up not getting made.

• Large companies, the Samsungs and Apples and HTCs, who spend billions of dollars on patent acquisition and litigation—which could be better spent on R&D.

• You, gadget-lover, whose desire for the latest and greatest runs directly counter to the directives of the patent wars. It slows things down, it limits choice. It destroys the marketplace of ideas in favor of a shadow world, where the only products you get to see are the ones that get past a beleaguered team of IP lawyers.

That's essentially every part of the tech ecosystem that's infected by this parasite. What can you do? Ask your representatives for patent reform (if you're looking for an outline of what to say, Amazon CEO Jeff Bezos kind of nailed it back in 2000). That, and hope that the great patent Cold War doesn't devolve into a thermonuclear disaster.


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