04 September 2011

Media Interest Suggests That We Need to Talk About Patents

We have found the past few weeks to be most interesting and instructive.  In particular, we have been caught up in a wave of media attention in the patent system, triggered by various events involving the companies behind products and services that many people use every day.  Suddenly, people (and journalists) for whom the patent system is generally of little consequence have found themselves – in some small way – directly affected by it, in terms of the products they are able to buy, or the price that they might expect to pay.

As a result we have found ourselves quoted in the Australian print and online media on a number of occasions.  We have received emailed questions from journalists.  We have been re-quoted in foreign media (our comments to the Australian press, on one occasion, translated into Spanish).

Most surreal was one morning when, just as we were leaving for work, the phone rang at home.  A very popular Melbourne breakfast radio program (Red Symons, at ABC 774 Melbourne, for those ‘locals’ who know it) was wondering if we might have a few minutes to talk about the story in the news that day regarding Samsung’s citation of 2001: A Space Odyssey in its US dispute with Apple (see Did Stanley Kubrick Invent the iPad2?). 

Since when does anyone want to listen to a patent attorney over their morning coffee?

The answer, of course, is since the latest round of highly-publicised ‘patent wars’ involving companies – such as Apple, Samsung, Google, Kodak, Microsoft and Motorola – which are household names, and whose products and services people use every day.  Consumers seem happy enough to pay a price premium for a cool innovative product, based on the R&D investment made in its development (it is hard to imagine why else people would pay the prices demanded for some Apple products, compared with their ‘Wintel’ competitors).  However, recent media reporting and internet commentary suggest that those same people are less impressed when the innovator seeks to protect that investment in court.

There was a time when companies would proudly advertise products with ‘unique patented features’ or a ‘patented formula’.  These days, it is more likely that any marking relating to granted or pending patents will be in small print somewhere on the product, packaging or documentation.  This is there for legal reasons, not to promote the virtues of the product.  Those companies that own patents seem less proud of the fact than they once were.

To the extent that the general public cares at all about patents, confidence in the system is being gradually eroded.  When people hear of US patents being granted for such trivialities as a method of exercising a cat using a laser pointer, or a method of swinging on a swing, they are hardly likely to see this as evidence that the system is doing its job of providing an incentive for investing in innovation.

More seriously, the system is facing criticism from vocal minorities opposed to the grant of patents in fields such as computer software, genetics and biologics.  While the concerns of these groups are genuine, the response from those involved in the patent system – including patent professionals – has been less so.  Opposition is too often dismissed as being the result of ignorance of commercial and economic realities, or of the rational basis for the patent system.
In the case of computer software, strong philosophical objections to patents have their origins in the ‘free software’ movement.  For proponents, the word ‘free’ refers to ‘freedom’, not price.  Free software advocates believe that everyone should have the right to use, modify and redistribute computer programs for any purpose.  A patent provides the inventor with a right to control the use of the protected technology, and thus acts as a potential barrier to software freedom.

Of course, an inalienable right to tinker with the work of other programmers is something that only a programmer could believe in, and not all programmers share this belief.  Of more practical concern is that a proliferation of software patents places all developers in a position of uncertainty as to whether the code they write today may result in a lawsuit tomorrow.  This is, indeed, almost impossible to determine.

Opposition to the patenting of genetic and other biological materials arises from moral and public interest considerations.  A sense that patents are being granted for features of the natural world, for aspects of our individual and shared human genetic heritage, or for tests and therapies that should be affordably available to all, makes strange bedfellows of religious fundamentalists, civil libertarians and public health advocates.  While many in the patent profession engage well with concerns about economic effects of the patent system, we are less adept at dealing with moral and ethical issues.

Furthermore, the patent system is straining under the acceleration in intellectual innovation in modern knowledge economies.  Overburdened patent offices are taking longer to issue patents, which have been subject to less stringent review.  Questionable patents are being deployed by so-called patent ‘trolls’ interested only in extorting money from others, and not in developing or marketing innovative products or services of their own.

Some of the perceived problems with the patent system are real.  However, real problems that can be identified can, in principle, be solved.  Engaging with the wider public to address a growing crisis of confidence in the value of the patent system may prove more difficult.

There is much discussion and debate about the patent system in various specialist forums, but perhaps there is a growing need for a wider conversation with a broader cross-section of the societies which the system is intended to serve.

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