Merpel Made Blind by Patent Lawyer Goggles

Merpal, the IPKat's commentatorThere are a number of well-respected blogs dedicated to copyright, trademark and patent laws (collectively termed ‘IPBlogs’). One of those is the prolific and often useful IPKat blog. However, like any site, it can sometimes damage credibility with a bit of bias. Today this happened to the ‘Kat.

During a routine piece about software patents in New Zealand, there was a note added to the end of the sentence, by the ‘brain’ behind the site, which is noted in brackets and highlighted in red, just to make clear it’s a note, and not part of the piece itself. It looks like this.

However, clause 10A is narrower than the approach to patentability of computer programs taken in Australia. This conflicts with the New Zealand government’s intention to more closely harmonise intellectual property and business laws with Australia [But why would they want to do this, wonders Merpel. Wouldn’t they get a competitive advantage if they gave patents to inventions that weren’t patentable in Australia …?].

There is just so much wrong with this last sentence that it boggles the mind. Anyone who’s studied patents over the last decade is well aware of one thing – software patents have not helped anyone, except patent trolls, and the patent lawyers involved in those cases. And it’s here we perhaps hit on the problem. As a group of lawyers, the IPKat isn’t interested in what’s good, or effective, they’re looking for what gives them lots of work. Eliminate software patents, and a large field of work (both filing, and litigating) goes bye-bye.

The truth is that software patents are no conducive to the economy at all. In fact the vast expansion of what is considered ‘patentable’ over the past 20-30 years has led to a great stalling both of innovation and the economy.

To insinuate to their readers however, that allowing junk-patents would somehow ‘improve’ things and give someone a competitive advantage is not only factually wrong, it’s ethically wrong.

What competitive ‘advantage’ there would be would not be because it’s something unique, because other places don’t allow it, as Merpel notes. The advantage would come directly at the expense of competition, competition that would exist elsewhere already. So any sort of global ‘advantage’ is gone.

And this of course presupposes that patents give economic advantages anyway. They don’t. The US legal system is swamped in software patent litigation (in the US, pretty much every phone manufacturer is suing every other one resulting in slow development there) as anything and everything ‘software’ seems to be patented, from end-of-scroll bouncebacks, to podcasting.

In reality an overbroad patent system is really bad for companies and economies. It trivialises actual innovation, and makes progress really hard, as you have to run the gauntlet of pointless, obvious – but actionable – patents.

Even assuming you were to get the patent, the competitive advantage is questionable. You’ve had to pay to file and get the patent, so you’re already down at least $7,000 there. Then you have the fun of monitoring and enforcing that patent. That’s not cheap either. Now, after all that, you MIGHT be able to scare a settlement, but if not, then you have to go to court, which is a lot more expense. Better hope you win, or else you’ve just thrown a lot more money away.

Of course, If you’re a patent lawyer, all those things are a positive for you. So perhaps “Merpel’s note” should have read “Wouldn’t patent lawyers earn more if they gave patents to inventions that weren’t patentable in Australia …?

And that’s the problem right now. The Patent systems around the world are driven by patent lawyers, and patent offices, who have an incentive to broaden the reach, to ensure a steady stream of work, both in administration and litigation. The actual worth to ‘civilisation’ doesn’t factor into it, which is really bad in a government-enforced mandate on the restriction on the dissemination and use of knowledge.

Don’t get me wrong, done properly, patents are very useful. However, to assume that “Patent = Good” is just plain old crap. If it really is a new, innovative, inventive step that approaches a problem a new way, then sure, but If it’s a computer program, or other non-tangible thing (such as mathematics, a business method, or a speculative product/theory that can’t actually work) then it shouldn’t be patented in the first place. And to imagine there’s some kind of benefit from those kinds of patents? That shows one of two things – ignorance, or duplicity – and neither one is good.