The patent industry, like many industries, is making a painful transition from the age of steel to the age of the mind. Like many powerful and wealthy and well-connected industries, it thinks it has all the answers. And like all giants facing a transition, it tries to impose its view of the future on reality.
The patent industry's view of the future is that patents represent property that can be bought and sold, and that the expansion of patentability in as many directions as possible will increase the size and wealth of the parent market, and thus the wealth of nations. Patents, it argues, are more important than products, than free trade, than public health, than ethics, than collaboration.
It's such an arrogant and unrealistic proposition that I have to ask the question, "will the patent system even survive the next decade"?
It's been said that the best way to predict the future is to take today's emerging trends and imagine them ten times worse. So let's look at the emerging trends of the patent system:
- The evaporation of patent quality, driven by economic incentives that promote quantity, and punish quality.
- Huge growth in the number of patents pending, and granted.
- The growth of for-profit patent administrations, especially the European Patent Organisation.
- Schisms between different industries who struggle to share a single patent model.
- The creation of vast patent thickets, driven by economic incentives.
- The loss of product-driven innovation in many areas, as large firms become pure-patent firms.
- Mounting litigation, especially in the US, but increasingly in Europe too.
- Increasing political frustration with the patent system, which seems unable to reform itself.
- Growing public perception of the patent system as a club for the rich and the powerful.
Take these trends, multiply them ten-fold, and you see why my question is not extreme.
The patent industry points to its own concerns, such as the cost of translating patents into twenty languages. Yes, this is a problem. But it's not an emerging one - translation is a fact of European life and it's solving itself, as business standardises on English. Translation is a problem of the past.
Many people would be happy to see the patent industry collapse into ruin. But I think the disclosure principle is very important. In my quarter-century of professional IT, I've been dismayed at the number of times people claim to be inventing things that were well-known to previous generations. When Microsoft proudly "invented" virtualisation to make DOS work inside Windows 3.1, they did not realise that virtualisation had been re-invented multiple times in the mainframe and minicomputer world, as early as the 1970's. The lack of any long-term system for documenting knowledge - aka "prior art" is a tragedy for computer science.
So I'm going to argue that a sustainable patent system is needed for cultural and scientific reasons, and on that basis, I'm going to propose five steps to get there.
These steps are: to stop the polemics, to resolve conflicts of interest, to construct appropriate models, to return to basics, and to engage in constructive dialogue.
Let me take these points individually.
First, stop the polemics. Slogans like "the USA has a powerful economy because it has a strong patent system" sound great, but when the US economy works worse than the EU's, this can backfire. Making the patent system so central to economic well-being also makes it vulnerable to quick political fixes. Somewhere a politician is thinking, "perhaps those million pending patent applications and the US's loss of competitiveness are linked". And a quick political fix to please the electorate is in no-one's interests.
Second, resolve the conflicts of interest. Mainly, the patent administration (the EPO) must stop acting as a business. The patent office is either a for-profit business (in which case the rules of the market should apply, with free competition and appropriate regulation) or it's an administrative office (in which case it must become economically neutral, and stop lobbying).
Third, construct appropriate models. There's no single solution for all industries, and many of the stresses come from trying the same shoe on every foot. Look at the conflict between pharma and IT in the US. Different sectors have different needs. Even in one sector, the needs of large and small businesses may be completely segmented. We need to think outside the box and ask, "are there new forms of property that may work better"? And there are cases where private property is totally inappropriate, where common ownership works much better.
Forth, return to basics. The patent system is first about disclosure, then business certainty, then profit. Where is the disclosure today? If the patent system is not building a store of useful prior art, it has lost its prime reason for existence. We need to fix the economic incentives and regulation so that patents are described clearly and usefully. Clear patent descriptions mean business certainty, more investment, less litigation, and a more popular patent system. It comes down to public perception: if the patent industry is seen as "evil", as a tool for the rich and powerful to crush the poor and helpless (and we're very close to that perception today), its survival is put into question. It is incredibly difficult to fix a bad image problem.
Lastly, engage in constructive dialogue. The attempts to bulldoze so-called "solutions" like the software patents directive and EPLA into place must stop. The patent system needs some real re-engineering, based on proper economic study, technical construction of solid models, and finally legal formulation. This work must come from civil society, industry, academia, legal experts, and patent experts. The end result, if done properly, will be the end of the casino system, and the start of a wealth of good, honest patents that will create much more prosperity.
What's the FFII's role in all this? We have been seen by our friends as an abundant source of free insight and constructive policy. We have been seen by our enemies as a frustratingly well-organised PR machine. We baffle some people - the chief patent counsel of Intel, who worked hard in 2005 to get software patents, works with the FFII in 2006 to prevent criminalisation of patents, and said "be careful you don't make enemies of people you might need later".
We are not a special interest group, but representative of informed civil society. The FFII's opinions, while extreme to some ("no software patents") are accurate and painfully sane analyses of complex situations. To allow software to be patented in today's system would bring Europe's patent system into line with that of the USA, just as the American system is starting to disintegrate.
So our role is that of an interface, a mediator, and perhaps even a partner of the patent industry as we look to the future and ask, "can we imagine a patent system that actually works?"
The day when I, as the owner of a tiny software company, seek to buy patents like I buy domain names and trademarks, will be the day that the patent system has finally made the jump from the age of steel to the age of brains.