Patent Trolls are Only the Symptom

I was going to write a post on how trolls aren’t the fundamental problem with the patent system but Timothy Lee has it covered:

…trolls aren’t the primary problem with the patent system. They’re just the problem Congress is willing to fix. The primary problem with the patent system is, well, the patent system. The system makes it too easy to get broad, vague patents, and the litigation process is tilted too far toward plaintiffs. But because so many big companies make so much money off of this system, few in Congress are willing to consider broader reforms.

A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That’s not because Google was caught copying Microsoft’s Windows Phone software (which has never been very popular with consumers). Rather, it’s because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft’s patent arsenal has become so huge that it’s effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.

… In effect, the patent system is acting as an innovation tax, transferring wealth from companies that are creating successful technologies today to companies that acquired a lot of patents a decade ago.

A more fundamental change would be to offer patents of varying length, say 3, 7, and 20 years with the understanding that 3 year patents will be approved quickly but 20 year patents will be required to leap a high hurdle on non-obviousness, prior art and so forth. See my paper Patent Theory versus Patent Law.

My video on patents is a quick and fun introduction.


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