Last Week’s Patent Problems Today

John Oliver skewering the patent system in general and ‘patent trolls’ in particular on his HBO show, Last Week Tonight, is the sort of thing that happens when the patent system matters. I didn’t watch Sunday’s show when it aired, but my news feeds and family and friends were quick to recommend it to me after the fact, so I gave it a watch (or two).

Oliver made one particularly excellent point: the explosion of patents of dubious quality when a new technological field develops is nothing new. I appreciated his comparison of software patents to railroad patents from long ago. The historical perspective from a commentator with (presumably) little prior knowledge of the patent system is not something I expected, but I certainly appreciated it.

I just wish he’d gone a little further with the historical perspective.

Low-grade railroad patents allowed before the Patent Office figured out how to examine those types of applications no longer bedevil us. Those patents have long since expired, and today’s examiners certainly know how to approach patent applications directed to railroad technology. I’m sure that in-house patent counsel at US railroads and their suppliers could point me to a few recent bad patents in their industry, but there aren't enough bad railroad patents in force to amount to a major societal problem anymore. Railroad patents may have been a problem once, but the Patent Office and the rest of the patent law community has long since learned how to deal with those applications.

We are still very much in the learning curve for software patents. Even if we can agree that bad software patents are currently a societal problem (although many will disagree as to how large of a problem those patents are), a longer perspective is in order here. 

Most of my patent prosecution colleagues and my own experience would tell you the heyday of easy-to-get broadly enforceable software patents has been over for years. That doesn’t mean the societal problems caused by dodgy software patents are over. Patents last more or less twenty years from the time they are filed, so patents issued from applications filed in 1995 are with us for a little while yet, and patents issued from applications filed in 2000 will be with us for several more years. Fortunately, my non-scientific and totally subjective evaluation of the quality of software patents is that the Patent Office has gotten more restrictive in its allowances every year I have been practicing. On average, a software patent issued from an application filed in 2000 will be narrower than a patent issued from an application filed in 1995; a patent issued from an application filed in 2005 will be narrower yet; software patents issued from applications filed in 2010 and (I suspect) 2015 will be even narrower.

The movement of the Patent Office (as well as the courts and congress) along the learning curve of software patents matters for policy makers, inventors, and patent attorneys. For policy makers, further tightening the standards of patentability for applications filed today won’t obviate infringement suits for patents issued years ago—but even if nothing else is done, those patents will expire. For inventors, obtaining a patent on your software like the patents you hear about in the news probably isn’t going to happen—but you still might be able to get a focused patent that helps your business succeed. For us patent attorneys, we need to realize that we and the rest of the patent system are still moving along the learning curve—and not be afraid to admit that we can’t make guarantees about outcomes.

Sure, the patent system has flaws, and for John Oliver and other commentators to point them out isn’t only fair, it’s appreciated. We need to be mindful of what’s really happening in the patent system, though, so that we can fix the problems we actually have. Otherwise, we’ll wind up fixing the last decade’s problems today.

A Time before Chisum

Most of today’s patent attorneys (including this one) do not remember a time before Chisum on Patents. For most of us, Chisum has been the first place to look for an answer to a question on patent law ever since we first had questions on patent law. 

The Written Description blog reminds us, though, that patent attorneys once had no Chisum to consult. Even if you have never opened Chisum on Patents, the previously unpublished essay by Robert Merges about Chisum’s work and the history of patent law deserves a read. As Mr. Merges explains about the origins of Professor Chisum’s work, “[i]nto this miasma of despondence and ennui waded Donald Chisum of the University of Washington Law School of Seattle.” 

Fortunately for us all, Chisum helped roll back the despondence and ennui, resulting in the sometimes contentious, but certainly lively, patent law debates of today.

Patent history and slingshotting innovation past incumbents (aka guilds)

If you are in any way a patent geek - and let’s not kid ourselves, if you are reading this, you are in some way a patent geek - you owe it to yourself to read the new article from Professor Ted Sichelman and Professor Sean O’Connor entitled Patents as Promoters of Competition: The Guild Origins of Patent Law in the Venetian Republic (PDF available for download here, via Written Description). You may very well be someone who is convinced that the patent system tends to suppress competition and disadvantage new competitors relative to established incumbents or provide undue benefit to trolls, but the article’s discussion of the history of the creation of the patent system in Venice is worth your time on its own. Sichelman and O’Connor go beyond history, however, to argue that the patent system at least can provide opportunities for new market entrants, be they newcomers to Venice or startup technology companies. As their paper concludes:

The traditional view of patents focuses on the trade-off between competition and innovation incentives. Yet, at their origin in the Venetian Republic, patents functioned very differently. In particular, they fostered competition - first by foreigners and soon thereafter by Venetian citizens - with the entrenched guilds that otherwise were entitled to state-sanctioned monopolies. Understanding the competition-promoting role of patents not only has profound implications for historical accounts of but also for our modern-day views of patents.

While a study of the history of patents on its own probably will not change many minds as to what, if anything, should be done to reform our own patent system, Sichelman and O’Connor explore how the conflict centuries ago between established businesses and new innovators shaped the patent system. They even describe how different levels of entrenched interests may have resulted in different thresholds of patentability, a discussion that may echo to this day when we consider the various patent systems around the world and proposals from different interested parties for reforming our own system.

Of course, the experience of Renaissance economies certainly is not directly applicable to our own. Today’s technologies are more diverse than those of Venice in the 1400’s; we still make silk and felt, but we also make pharmaceuticals and robots and computers and countless other things that even a sophisticated Venetian of that time could not distinguish from magic. Even if there is a “right” balance between the interests of incumbents and new competitors that a patent system should strike, that balance may be different for different markets, or different technologies, or different countries. Regardless of the balance to be struck, though, understanding the history of trying to strike that balance can only help us.