Is The Patent System Broken?

In a recent interview with The San Francisco Chronicle the patent counsel of Google, Tim Porter, claims the patent system itself is broken. Patent offices worldwide have been increasingly granting protection to “innovations” that are rather vague, fuzzy, or even not innovative at all. As a consequence the IT Industry is currently facing an endless series of patent trials which some large corporates seem to mainly leverage as weapons for attacking competitors.

The patent system was originally introduced in the era of industrialization to protect innovative ideas of individual inventors or small companies. What worked very well for decades, is now abused by IT vendors to prevent innovation and competition. One prominent example is the continuous attempt of companies such as HTC, Samsung, Microsoft or Apple to demand injunctions against selling smart mobile devices. That is the reason why large companies are forced to increase their patent portfolio. Inventors and small companies cannot afford to act likewise.

Isn’t this just a legal issue? In large software projects it turns out to be a real challenge. On one hand, system engineers, software architects and developers need to make sure that their software does not violate and intellectual property rights, especially when using open source software. On the other hand, they must create large patent portfolios themselves for business protection.

Why is it then valuable to patent software? Porter answers the question as follows,

I think the question is whether the current system makes sense. During the period I talked about [in the 1980s and 1990s], software was protected by copyright and other legal protections. There are certainly arguments those are more appropriate.

But I think what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax.

According to his viewpoint, the legal system shouldn’t allow to patent the obvious. he proposes to introduce standards for patents and provide clear boundaries. And,

at the end of the day, damages, injunctions and remedies have to be proportional to the value of the invention. Very often, what is fueling patent-troll lawsuits is the ability to go into court and seek astronomical damages based on what any rational person would consider a minor component of the product.

Google’s strategy in this context is to enlarge its patent portfolio by buying other portfolios in order to protect Google and its partners.

Unfortunately, Porter does not mention how to support smaller companies or single inventors in this context. Eventually, those are the ones for whom patents were invented.