Patent WMDs

No, we are not talking about patenting WMDs. We are talking about how patents have become WMDs destroying real creativity and competition.  The recent Apple vs. Samsung patent fight has yet again underlined how broken the patent system has become.This is what patents were supposed to do:

A patent was conceived as a bargain (an exchange)  between an inventor and society, where because the society deems the invention worthwhile and the inventor might not share it otherwise, it grants the inventor a period of right to practice his invention exclusively in return for disclosing the invention (i.e. teaching society how to practice the invention after the exclusivity period expires).  

Let's parse it point by point:

1. an inventor conceives of an invention that is non-obvious, i.e. others would need to be taught by the inventor how to duplicate it
2. inventor will not disclose it unless given some protection
3. society agrees to grant the inventor a period of exclusive right to practice (profit from) the invention in return for immediate access to its benefits (at a monopolistic price) and a disclosure that would allow others to practice the invention after the exclusivity period expires.
4. the inventor enjoys the fruits of exclusive rights to the invention during the exclusivity period
5. the society enjoys the fruits of the invention after the the exclusivity period has expired

It is obvious how the patent process works in cases of fundamental inventions with long-term benefits,  such as novel methods of generating energy or life-saving drugs. The key point is that a patent is supposed to be about HOW to do something ("how to cure cancer"), which is non-obvious, not WHAT to do ("let's cure cancer"). It is in our interest to give the inventor something in return for their efforts inventing the cure for cancer. It is NOT in anybody's interest to give anybody anything in return for a program for bouncing icons or (worse yet) the mere idea of bouncing icons. A consumer can choose to pay for it, just like they would for a special color, but there is certainly no need for a "grand bargain" with the society to protect bouncing icons. 

What's missing in most patents (and pretty much all software patents) being issued and so fervently litigated today?

1. Patents are granted for inventions that are obvious. Most practitioners of the art can easily replicate the invention (e.g. bouncing icons in a user interface) without needing any help from the inventor. This means that the fundamental quid pro quo of a patent is never present - the society does not receive anything in return for granting exclusivity. Nobody will bother making bouncing icons? Doubtful... Everybody will end up implementing their own bouncing icons? Great!
2. There are no societal benefits from the invention after the exclusivity expires, again violating the fundamental spirit of the patent bargain.
3. The "inventor" enjoys a near-monopolistic position  in return for nothing other than going through the legal motions of patenting (obeying the "letter of the law"), without any of the benefits envisioned by the law ever being realized by anyone other than the "inventor".
4. The "inventor" most skilled at the patenting process is the one who becomes most successful and since patents are usually based on other patents and ability to play the patent game is limited by money, a bigger-is-more-likely-to-win dynamic is created.
5. Occasionally patents do go to trial where a number of lay people are expected to understand and appreciate the nuances outlined above as well as the nuances of some arcane technology, which turns the trial into a game of PR and marketing, where (again) the organization with more resources and skills in areas completely unrelated to inventing is most likely to prevail.

The net result has turned patents into weapons of a cold war-like game. It is a game accessible only to a few superpowers of industry, who are mostly at standstill, with legal MAD (Mutually Assured Destruction for our younger readers...:-) strategies of cross-licensing, using weapons that only have value in quantities sufficient to annihilate everything but are never intended to be used for purposes other than arms negotiations. We have also witnessed the emergence of large global arms dealers like IV, happy to supply all sides in the war.

The problem with this mad game is that we (the society, the people who struck the original bargain of patents) pay for it and we pay many times over: we pay through stifled innovation, we pay as consumers and we pay as shareholders. 

Whether Apple won or Samsung won is almost irrelevant if the game is rigged. The case had the wrong set of plaintiffs - we were missing.

This not a critique of inventiveness or patent lawyers - the author is an inventor and author of multiple patents. This is a critique of the present perversion of the spirit of the patent system that has been hijacked to erect artificial, anti-competitive barriers that stifle true innovation at a very high cost.