When I was learning engineering, patents were a given. You'd work on a new product, innovate along the way, and then meet with a patent attorney to file for US and overseas patents. I have two patents myself. But now I'm asking: Are patents still useful to society? I have my doubts.

I am not speaking about other intellectual property copyrights, trademarks, and trade secrets. All of these are useful to society and the creators of the new works, methods, and technology. In some cases, they may be the alternative to patents, particularly trade secrets.

So, what is a patent? The United States Patent and Trademark Office describes a patent as:

An intellectual property right granted by the Government of the United States of America to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time in exchange for public disclosure of the invention when the patent is granted

It's a deal. If you publicly disclose the invention, you get a monopoly on its use for a certain period of time. There are three types of patents -- utility, design, and plant patents. Utility patents relate to how something works, design patents deal with how something looks, and plant patents deal with vegetation. Their periods of exclusivity are typically 20, 14, and 20 years, respectively.

I will ignore plant patents for now, as most high-tech patents deal with utility, though some deal with design. Whether it's 14 or 20 years, here we have our first conundrum.In the high tech world, what is the utility to society for the disclosure 14 or 20 years later? Not much. 10 generations of Moore's Law have made most patents obsolete by that time. No one would believe that patents should award monopoly use forever, but 20 years is pretty much forever in high tech.

So, the deal is asymmetric -- the value of the patent is much more valuable to a patent holder than it is to society.

But is the limited value to society even positive at all? As I stated earlier, I have my doubts. The enforcement mechanisms have a cost. Not just the costs or the courts and all the lawyers involved, but the cost of stunted innovation by players, both large and small, wary that their product will be targeted by others with massive patent portfolios. Some small corporations, pejoratively known as patent trolls, buy patents just to pursue lawsuits and settlements against larger players. Patents are bought and sold so they can be used offensively and defensively.

All of these are big costs with very little evidence that they further innovation. Indeed, they are stifling it. One of the latest events that drove this home for me has been the patent war between Apple and Samsung. After Samsung won a patent judgment against Apple in a US venue (The International Trade Commission), the Obama administration vetoed the judgment. It's not taking sides in this dispute, but it makes you wonder if even the US government still believes protecting patents is in the public interest, or whether they are counterproductive.

I've reviewed many existing patents, and I find many of them have significant overreach. They patent things that are obvious or just different. Many patents are just engineering, not fundamental invention. This creates a huge domain for disputes, and their associated costs.

So, what would I suggest if patents were eliminated? Two things: trade secrets and time to market. If you really do have a novel technology, run with it. Stealing secrets would still be illegal. Coca Cola never patented Coke -- the formula is a trade secret. Others imitated it to partial success, but we didn't say they were the only cola manufacturer for 20 years. And society isn't crumbling because Coke is still a secret.

Innovate and get to market quickly. Apple's iPhone was a huge success for Apple, and took time for competitors to imitate (better or worse, depending on your judgment). Does anyone believe innovation would cease if we eliminated patents and depended on trade secrets, copyrights, and trademarks only? I don't. Eliminating patents may not be optimum for all markets. Perhaps the model still works well for pharmaceuticals where the development times are long, and public safety may require disclosure. But for high tech, patents may have run their course.

 

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