Patents in the dock

Today's Hot Topic, 24th August 2011. Patents in the dock

Google has just spent $12.5bn (£7.7bn) on buying Motorola's mobile phone business. The logic of this was to better be armed for the great patent war. Apple, once a cosy neighbour of Google's, had started making very un-neighbourly moves in taking Google to court for patent infringement of some of its phone technology. Nokia, Microsoft, Blackberry and Hewlett Packard (inheritor of the Palm) were all keen to join the fray. So the story is that Google bought Motorola’s mobile division to be able credibly to counter-sue those litigants for patent infringement themselves.

Are patents just ways for big companies to keep out the newcomer with spurious inventions and threats of expensive suits? Or, behind all the high corporate strategy, do they still foster the right kind of innovation?

Prosecution
Consider some of these patents: clicking on a button to pay for something on the web is patented by Amazon ... derrr – maybe Hermes could patent a device for storing money and cards in (the wallet) and Armani could protect itself by patenting the container attached to the garment that contains the Hermes device (the pocket, you see). Pinching a touch-screen to zoom out is patented by Apple. Blackberry even claimed to have a patent for receiving and sending email on a phone. Big ideas, huh? The whole point of patents was to give small guys with brilliant ideas a good reason 1. to invest and 2. not to keep their techniques secret. But what we have now is a joke – behemothic corporations making piddling improvements on a process and taking all and sundry to court to protect an unjustified monopoly.

Defence
That is a caricature of what patents are mainly about. Every behemoth was once a minnow, and many grew to become big strong bodies giving jobs to thousands and dividends to many more thanks to patent protection. Take Google itself as an example. As young graduate students, Larry Page and Sergey Brin developed a really clever way of sorting the wheat from the chaff on the web for one of their homework assignments. That eventually became the patented PageRank Algorithm which is still at the heart of Google's great success today. No patent, no investment; no investment, no mass market development of the algorithm ... hey, we might still be using Yellow Pages without the patent system in place. And that is not to talk of pharmaceutical companies that sink billions of dollars into a promising molecule in the hope of hitting a jackpot one day – a jackpot which would never come without the patent system to give them ownership of the molecule.

Prosecution
Some companies certainly have grown big with patents, but that doesn't prove that it's for the best. Take the Google example. As you say, PageRank was the result of a bright answer to a piece of homework. Would they have produced any less good a piece of homework without the patent system? Of course not! They weren't doing it to found Google. Look, even if PageRank had only led to a precocious publication for the two they would still have done incredibly well out of it. And it is a great algorithm – so everyone would have picked it up and used it. Today, we'd probably have a much healthier and more competitive web if we hadn't created the search monster. Patents don't really seem to sort things out so well in the pharmaceutical world either: how can you fundamentally defend a system that pumps more money into erectile dysfunction than finding a cure for malaria?

Defence
You can't damn a system of rules by a single outcome. And anyway, the Gates Foundation, with its billions of assets (in no small part derived from the patent-intensive technology industry), is putting a lot into malaria research. The system as a whole works as well as can be expected, especially when you take an overarching, system view: think of all the kudos available to the big philanthro-technologists for solving the problems that are left after private property has worked its magic. Patent systems were formalised in early nineteenth century Europe, and the countries that had strong patent protection – Britain, Germany, the USA – are the countries that had the strongest industrial revolutions. The great advantage of patents is that they encourage you to share knowledge – you publish clearly enough so that "someone trained in the art" can reproduce your invention; in return, you get a temporary monopoly. Without patents, technology development happens in secret and there is not enough knowledge sharing to allow the kind of avalanche of innovation that the industrial revolution saw.

Prosecution
There may have been a brief moment in history when the patent system worked as you describe – and even that is contested ... steam engine innovation slowed down after Watt successfully drove competitors out with his patented design ... But there is simply no doubt that now it has been corrupted, as have so many nineteenth century social innovations, like Central Bank guarantees, limited liability for corporations or a universalist welfare state. Patents should join those as bits of social infrastructure that simply didn’t survive the passing of the values that originally created them. Open your eyes. Big Corp has armies of people working on patents for entirely tactical purposes. When one key patent is about to run out, an almost identical one but with a few bells and whistles is ready in the wings to offer another 20 years of monopoly. This is not the excitement of the 19th century industrial revolution – it is the deadening hand of patents granted by the sovereign to special friends, a license to print money. "Patent silver", remember, comes from the gift of Silesian mining concessions to aristocratic supporters of the Holy Roman Emperor. Patents are turning our industrial and intellectual landscape into a land-grab by the powerful that stands comparison with the mines of eastern Congo. Remember: patents are in the social gift. So let's get back in control as a society and make them one useful tool to be used occasionally to reward good work instead of the instruments of domination they have become.

Defence
Oh, how easy is the life of the indignant critic! Domination ... social control ... Congo ... big corporations ... It all sounds like a crusader looking for a crusade. Look at the big picture – patent has given us technology and wealth on a huge scale. Just as you can throw an individual aberration like Viagra at me, I can challenge you to actually offer me a better system, not just a critique of one outcome or another. You seem to assume that we have an army of public servants waiting for the opportunity to do the public good ... that we have informed and intelligent citizens who can make fine distinctions between good and bad uses of a practice like patent or limited liability. But we don’t, so you don’t have a better alternative. Whatever the faults in our current organisation, one lesson we need to be thankful that we have properly integrated is that wishing a solution is not making a solution. The State, the elite and the public servant become corrupt just as has – so you claim – "Big Corp". Instead of indignantly whingeing and getting your oppositional kudos asking for "system reform", why don't you get out there and invent a bit of disruptive, patentable, technology?

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