Brian Prentice

I don’t know what it is about patents that get people so heated up. Then again when a bunch of anal-retentive lawyers start crashing the geek party I guess I can understand. But since patents – or more specifically software and business method patents – are shaping up to be one of the defining trends affecting our industry I think calm heads are needed to assure a rational debate on the topic.

Unfortunately, this wasn’t  on display in Erick Schonfeld’s TechCrunch post from last week. While responding to the Wall Street Journal’s examination of patent aggregator Intellectual Ventures, Schonfeld paints a less then flattering picture of a “troll” taking advantage of “rampant patent litigation” to create an extortionate business model. Schonfeld is no hack. But the emotion – wow! However, his final assertion that “…we should fix the patent system so that it rewards invention over litigation” indicates that the emotive response may not be connected to an entirely thought-through position.

Of course no one can directly dispute a statement framed the way he has – that would be un-American! Favoring litigation over invention would be like favoring netball over baseball, hot pots over hot dogs, meat pie over apple pie and Citroen over Chevrolet.

But maybe, just maybe, Schonfeld is painting a false dichotomy. You see, society has been rewarding invention for a long time by granting inventors ownership over their work. Litigation occurs when there is a real or perceived abuse of those property rights. Unfortunately, rewarding invention means accepting litigation as a part of the scenery.

In fairness to Schonfeld, he and I agree, in spirit at least, that some serious work needs to be done to the patent system to minimize the amount of litigation. But that doesn’t mean organizations’ like Intellectual Ventures and RPX Corporation will go away. In fact, their business models will become even more robust as better patents mean lower litigation costs and higher profitability.

So what exactly is the complaint here? If we want to reward invention then we have to accept that new business models will emerge to exploit the underlying value of the property that is required to achieve that aim. If we accept that fact then we don’t need to get so worked up about patent aggregators (I’m avoiding the term “troll” because it is needlessly emotional). Or do we deny software and business method inventors property rights so that these types of businesses don’t emerge? If so, then we’re not fixing the patent system but denying access to it.