Patent Progress provides useful information and timely analysis for navigating the high-tech patent landscape. We address the patent wars, trolls and privateers that have engulfed the technology sector in an unprecedented storm of multi-jurisdictional, worldwide patent litigation, along with the conflicting incentives and systemic failure at the heart of the challenge. Patent Progress identifies the misalignments and asymmetries and how the system can be reformed to promote innovation instead of conflict and litigation.
Patents are commonly described as intellectual property, but this aspirational term obscures important differences between patents, trademarks, copyright, trade secrets and other property-like interests. While patents can be bought and sold like houses, they differ from other forms of “property” in most respects. Indeed, patents work very differently in different industrial and commercial contexts, despite patent law being written as if one size fits all. While the patent system may work relatively transparently and reasonably well in the pharmaceutical sector, it is hindering rather than supporting innovation in the information technology and software sectors. Patents may be appropriate grants for protecting the investment behind a single drug, but they too readily become outsized, dangerous weapons in sectors where products consist of tens of thousands of Eligible to be patented. To be patent-eligible, an invention must fall into the categories listed in 35 U.S.C. § 101 (i.e., process, machine, manufacture, or composition of matter) and cannot be an abstract idea or a law of nature. functions. Large portfolios combined with a 20-year patent term favor incumbents, encourage the milking of old technology and disadvantage innovative newcomers, who begin with few if any patents.
The reach of the patent system has expanded, in practice if not in theory, to encompass subject matter that is decidedly not “intellectual”. Some notorious examples, such as making a peanut butter and jelly sandwich, a method of swinging on a swing and exercising a cat with a laser pointer, have elicited public ridicule. However, the real danger lies in patents that preempt abstract functions, such as one-click ordering or pinch-and-expand gestures, rather than specific implementations. These patents often diminish the scope of the free market, limit consumer choice, harm productivity and spread liability far and wide.
Patent Progress speaks to these problems from a broad high-tech perspective. The new industry of smartphone and tablet apps is vastly different from the semiconductor industry, and both differ dramatically from IT-intensive services. However, they all involve complex functionality operating at different levels of abstraction. The economics of digitization continue to drive innovation, productivity and growth. Laws regulating the digital economy should be tailored to fit.
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