On Wednesday I had the privilege of being part of a panel before the Inn of Courts in Boston. This is an organization of patent litigators that meets for continuing education and discussing the practice of their craft. For this meeting, they invited a panel of practitioners from startups and academia to listen to lay people talk about how intellectual property is working (or not) for us.
Topics were quite broad including a focus on copyright, trademark, and trade secret as well as patents and licensing. In the end because the panelists were mostly from the software space we focused more on software patents and software licensing.
The audience was remarkably receptive of the idea that software patents are usually bad, potentially so bad they should be eliminated entirely. As one litigator I will leave anonymous told me at dinner, “When I’m on a case, if it is a pharma patent I can assume it’s a good patent, and when it’s a software patent it is usually junk.” I suppose this reflects prevailing sentiment in the courts after Alice and other decisions.
The discussion became heated, however, when an audience member questions why we want to throw out all patents, noting that because of business method and software patents, congress and industrialists and the public have started to tar all patents. He found it particularly concerning for the future of investment and innovation. And that it is not as simple has “pharma good, all other patents bad.”
I agree that eliminating the entire patent system is not going to be a global optimum, but at the same time I do see it as a problematic institution. The audience was surprised at how ignorant academics can be of the obligations of the patent system, and the right way to use it. Of course, academics would rather publish and collaborate than patent, in general.
This revealed an assumption on the part of many attorneys present, that patents are still an effective disclosure which can be used by practitioners seeking solutions. Unlike academic papers, they are reliably and permanently public information. But honestly, having written and read patents, I can’t imagine anyone using one to build something. I challenged a smaller group to identify a single instance of the software developer in the Boston area in the last 10 years implementing something based on a patent. They conceded it was a bet I would probably win.
For academics, I think that tech transfer programs are effective at encouraging people to think about commercialization, more than they are at encouraging innovation through financial incentives. In most cases, academics innovate because that is what they want to do, and they publish, and they commercialize later, as a way to maximize impact of their work. Of course some academics find ways to become wealthy doing this, but they are the exception. Tech transfer created structures in the university to promote commercialization, and those are good for society. I suspect other ways of facilitating commercialization could be as successful. Notably StreamBase and hundreds of other software startups to come out of university have been helped by BSD-like open source licenses, without a need for any patent protection or commercial licensing.
Overall I was glad to be a part of the passionate discussion. They understand that the patent system isn’t working well, and that politicians and the courts are starting to the create new boundaries that are necessarily optimal. I drew a parallel to the high frequency trading experience, where the political climate, the expectations of regulators, legislators, and the public are being violated. Often the things people react most strongly tare not the biggest problems, but their reaction cannot be ignored.
I think the patent community has a big obligation to maintain public trust and to think about the real basis for what they’re doing. The idea that patents and intellectual property can encourage innovation is a good one, but in areas where it’s having the opposite impact we need to question our assumptions. Wholesale repeal of IP law is probably not the best way to constructively improve the system.