Cash in those patents – quick!

It's long been clear that (except in a small number of specific fields) the patent system is very broken, and now serves chiefly to stifle, rather than encourage, innovation.

If you still doubt this, read some of what Richard Posner has been saying. Or look at this CNET article from a few months back which points out that from 2002-2009 patent trolls and other 'non practicing entities' made more than three times as much from litigation as those who were actually using their patents. Or listen to this episode of TWIT about how all the phone manufacturers are suing each other in a huge flurry of paperwork.

I can speak from personal experience here – I put my latest startup ideas on hold, largely because I discovered a few patents which came a bit too close for comfort, even though none of their owners are making use of them in any of their products. (I should also, in the interests of full disclosure, mention that some of my income is currently coming from being an expert witness in a west-coast patent case, so I’m arguably part of the problem, but at least I'm on the side of the defendants!)

I'm sure many entrepreneurs dream of a world in which they could just opt out of the whole system and just rely on good old competition. Imagine if you could only prosecute someone for patent infringement if they also held patents. Ah, what a sweet thought! Remember War Games?

“A strange game, Professor Falken. The only winning move is not to play. How about a nice game of chess?”

Sadly, history offers few examples where unilateral disarmament has been a sensible choice. But we can at least dream.

Fortunately, enough noise is being made about this state of affairs now that it is growing more and more likely that something will be done about it. And a thought occurred to me this morning: I wonder if the lawyers and their clients have cottoned on to this? Could it be that big companies and patent trolls alike have realised the danger that their patents may soon be a radically devalued currency?

Perhaps the ever-increasing legal battles are partly due to an awareness that, having invested in all these armaments, they'd better start lobbing shells at each other pretty quickly before the rain takes the fizz out of their gunpowder…

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