There’s an idea in reporting that to be “fair” to a topic, one must “balance” one view with equal time and emphasis for the opposing view. You will not see that here, dear reader, as I have said that unbiased journalism doesn’t exist. Indeed, when the opposing view is intellectually bankrupt, giving it equal emphasis serves only to distort the issue.
Consider software patents as an example. There really are no honest arguments in favor. Likely copyrights, patents represent a set of exclusive rights given to the “inventor” of an idea for a limited time. This is done expressly to encourage said inventor to invent. We’re going to leave the notion of patents in general for another time. They distort many industries (such as biotech where they serve to direct research into solving problems with patentable chemicals or patentable hybridization rather than simpler more cost effective solutions), but here we’ll concentrate on one industry we know well and one patent troll that has made the news over Christmas.
The news story concerns Walker Digital suing Blizzard (makers of “World of Warcraft”) and Zygna (makers of “Call of Duty: Modern Warfare”) for violating it’s patent on pretty much anything that’s an online game that could be described as some sort of tournament-style play. Walker Digital is an example of a Patent Troll. They don’t make or discover anything; they simply buy patents and enforce them using the courts.
Now that job of the patent troll may sound legitimate at first. One might not have the resources to enforce one’s patents and such an entity would be an excellent way to monetize them. However, the reason Patent Trolls exist is that for much of the past 50 years, companies found themselves in patent stalemates. It’s literally impossible to create software without infringing on patents, so large firms simply traded access to each other’s patents. Think about this for a moment, then: It’s impossible to be a company that produces anything useful and to enforce patents — chances are that you’ll end up just making a deal because you also infringe on patents. This, then, required the creating of companies who contribute nothing to monetize the patents.
Again, you might try to argue that Patent Trolls perform a useful service. Let’s examine this one case to determine if they are providing a useful service. Our first question should be: was the inventor being inventive? The patent was filed in 2002. Were there online tournaments before 2002? I can personally remember games of xpilot being played around the office lan in 1995. I can also remember games of Quake III being played on a different office lan in 1999. I can even remember playing chess and go over the internet in university in 1991. While I don’t have a personal recollection dating back further, I’m pretty sure that networks of computers have been used to play games tournaments pretty much since there have been networks of computers.
This makes my first point: that much of what we do on computers is not so much a new invention, but a recombination of many parts not worthy of being called an invention. One of the most famous computer software patents, the blinking cursor patent, was awarded in 1970. It makes this point ever more clear. Firstly, if called to make a blinking cursor, any software engineer would write roughly the same code. This means that the software is not an innovation or invention, it’s simply best practice. Secondly, through the math that makes computer programming what it is, you could show that any program that blinks a cursor is equivalent to any other program that blinks the cursor. This means that there is essentially only one way to blink the cursor.
That last revelation means that once one person patents a blinking cursor, nobody else (for the life of the patent) can make a blinking cursor without paying the first guy money.
Let’s return to our example. Walker Digital didn’t innovate, then. There is prior art and there is ample evidence that the solution is simply best practice programming. It’s a shame the US Patent Office doesn’t have the resources to enforce it’s own rules and guidelines, but that’s where we are. But these are two massive companies they are suing and they have the means to defend themselves, right? That would be true and fair if the patent system weren’t one sided enough that patent holders basically “can’t loose” by suing. By that I mean that even if the defendants win, the only cost to the patent troll is their legal fees — the defendant gets stuck with a large legal bill and that eventuality is an incentive to settle … even on bad patents.
Therein lies the possible fix. While winning a patent suit can net massive damages, loosing a patent suit has few costs. Congress has been reticent to change or reform patent laws — waiting instead for the courts to sort things out. This last item is one where the courts have no ability to fix. Costs need be assigned to the looser in the suit. That minor change alone would slow the tide of patent lawsuits which are in turn slowing innovation (counter to their stated purpose).