Patent reform is critical to the future of our modern, globalized economy. It’s so important that we can’t waste precious time entertaining myopic shilling from self-proclaimed industry spokespeople bent on reallocating the costs of a broken system rather than fixing the system itself.
On that basis, the U.S. Congress – which is currently considering the Patent Reform Act of 2009 – should kindly but firmly request that the IT industry sit down and shut up.
I have been following the software and business method patent debate for over five years and I have come to conclusion that the vast majority of the IT industry can not see past their own narrow commercial self-interest when it comes to patents.
I include in this the segment of the “open source community” (whoever they actually are) which is vehemently anti-patent. What they position as a highly principled “open access benefits society” argument for the elimination of software and business method patents can rightly be seen as a convenience for those advocating an industry realignment towards service-based business models. One can’t help but think that they just don’t want 3rd party ownership issues to interfere with their ability to make money. Noticeably absent from this perspective, though, is a broader debate on whether these arguments are valid without scrapping the patent system as a whole.
Then we have the traditional vendor community which wants to retain the right to patent software and business methods and license these for commercial benefit but want to deny those same rights to organizations and individuals that aren’t like them. Namely those nasty “non-practicing entities” that keep suing them for infringement.
That perspective was again on display in the testimony of Intel’s Chief Patent Counsel, David Simon, in his testimony to House Committee on the Judiciary. Channeling Michelle Lee, Google’s Head of Patents and Patent Strategy, Mr. Simon appears to hold the view that a “true innovator” and a “product manufacturer” are one in the same. This is an attempt to frame the argument in the context of good and bad patent holders – Intel, of course, being a good guy. I personally consider this a little to convenient to be taken seriously.
Patent reform does not need to devolve into the type of industry lobbying that is polluting the legislative process. I point specifically to the testimony of Phillip Johnson, Chief Intellectual Property Counsel for Johnson & Johnson. Clearly Johnson & Johnson has an interest in leaving the patent system largely unchanged and that is reflected in his testimony.
But at the same time Mr. Johnson makes his argument from a broader perspective of the overall role of the patent system and backs his position up with facts and statistics. He even advocates changes that I would think would not necessarily be in the direct interests of his employer – things like post-grant reviews of patents. Importantly he puts strong emphasis, first and foremost, on addressing the financial and efficacy issues facing the USPTO. While I’m not sure I agree with everything he advocates I respect the spirit of compromise infused in his testimony.
Unfortunately the overriding spirit infusing the IT industry’s contribution to the patent reform debate appears to be narrow self-interest. Not to say that there aren’t balanced voices out there – but too often they’re drowned out.
That’s a shame. As an industry we have so much more to offer. We are better positioned than most to comment on the evolving nature of innovation and how that impacts centuries-old assumptions of the patent system. We can and should be more active in helping PTOs grant higher and higher quality patents. As an industry we’ve been at the forefront of driving process efficiency – why aren’t we collectively doing a little pro bono work to help a public agency that has such an impact on the future of our industry?
It’s time for our industry to pick up its game in these types of national policy debates. If not we should rightly expect to be ignored.