Friday, February 24, 2006

Patent Law

For all those addicted to blackberry wireless email, U.S. District Judge James Spencer ruled out an immediate injunction on the service. This case shows how dysfunctional the whole patent system has become. A Virginia-based patent holding company NTP Inc is claiming that Canadian-based RIM has infringed on five patents to operate the blackberry system. The judge has ruled that he accepts this claim although he's not quite ready to pull the plug today. A collective sigh of relief could be heard across the country from millions of "crackberry" users including many in U.S. federal departments like the CIA. RIM has taken a counter offensive and challenged the validity of the patents. The U.S. Patent and Trademark office has thrown out one NTP patent already and RIM claims it has now issued rulings invalidating the other four as well.

I can see how a patent is essential to allow a small fledgling company with a great new idea to get a foothold on the market before another bigger company can step in. However, it is another matter to take out a patent on an obvious idea and then sit on it so you can later sue some other company that takes the time and investment to make it commercially viable. The whole concept of a patent holding company is repulsive to me. Now, every software and biotech company is looking over its shoulder to see where it may be blindsided by some overly general patent issued years earlier. Instead of encouraging innovation and development, the current laws discourage it.

The entire U.S. patent system needs to be overhauled. It is plainly ridiculous to allow patents on DNA sequences or trivial ideas like 'one click' purchasing on a website. It doesn't take a genius to think of wireless email. However, it was RIM that actually got it to work and have it be universally adopted. I think software is intrinsically different from say mechanical devices in that the source code can be kept a secret. For example, it would be like someone patenting a lawn mower but not disclosing the mechanism. The concept of a lawn mower should not be patentable, only the implementation. But that is exactly what is happening for software. I think software patents could have a place but they must be held to a higher standard. A patent should only be protected if a company clearly has a head start using it over some other infringing company. If someone just sits on a patent, they should get no protection.

1 comment:

steve said...

Hopefully this fracas will lead to improvements at the USPTO.

The problem remains that experienced examiners can earn more by heading to the private sector (joining an IP law firm). Also, there is no clear mechanism by which an examiner is punished for issuing a bad patent (which might not be closely examined let alone overturned for many years after it is issued).