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So I Don’t Like Patents Much; Am I Wrong?

First of all, I have nothing against the concept of intellectual property, or of paying for it, or of protecting it.  You are reading the words of 1 out of probably 2 or 3 people on the planet who has purchased a license for WinZip!  That’s dedication to IP.

My problem is that I don’t think patents do a particularly good job of protecting IP. The way patents work is: you reveal your invention to everyone and then count on a system that allocates IP protection to the wealthiest to protect your disclosure.  How could such a system help the up-and-comer?

(This is of course a fashionable view where I come from: Silicon Valley.  Just like everyone there is a “healing power of greed” type of ur-liberatrian, everyone there believes that patents are a way to stifle innovation, not protect it.  But just because it’s fashionable doesn’t mean it’s wrong.)

The current system helps the rich at the expense of the poor because the main muscle behind the protection system is litigation, a pay-to-play game that coddles either big players with big legal staffs and big legal budgets or else “patent trolls” with the equivalent of programmed trading in vague patent language.  Grifters and fat cats, in a word, but not the common working stiff of the IP world, the lone inventor in the paradigmatic garage.

By delaying adjudication of the validity of a patent until the very end of the process, the current IP system practically guarantees a suboptimal result.  When I was making software, we tested for bugs as early in the process as we could.  The cost of a bug goes up dizzyingly as you discover it later and later in the software development process.

It’s so in the patent process as well.  If you discovered flaws in the claims of a patent application early, you would save a lot of money.

So how to do it?  For software, we require unit testing (which is testing a software module before it is integrated with others) and peer review (whose apotheosis is “agile programming”, where all software is written simultaneously by two coders).

Does the current patent process have analogs for these quality measures?  I don’t think so.

What do you think?  Tell me how I’m wrong.

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About the author

an Gordon is Research Director for Valhalla Partners, a Northern Virginia venture capital firm. Dan has twenty-eight years experience working with technology, as a computer scientist, software developer, manager, analyst, and entrepreneur. Prior to joining Valhalla Partners, Dan was a Director and senior staff member at the PricewaterhouseCoopers Global Technology Centre, analyzing technology trends and consulting on technology-oriented strategies in the software, e-business, wireless, optical, networking, semiconductor IP, and life sciences arenas. He worked with clients from North America, Europe, the Middle East, and Australia. Dan was a Contributing Writer and Contributing Editor to the Technology Centre’s annual Technology Forecast, and a frequent speaker at industry and general business meetings. Before joining PwC, Dan spent 20 years in Silicon Valley as a software technologist, manager, director, and entrepreneur, including senior technical roles at well-known Silicon Valley firms like Symantec, Intuit, and Oracle. Dan has also been involved in startup companies in the applied Artificial Intelligence and Web applications fields. Dan has a B.A. (cum laude) from Harvard University and an M.S. from New York University in Computer Science. He is a Professional Member of the IEEE and ACM. Dan lives in Washington, D.C. with his wife and two children.
  • Gary Lauder

    Your characterizations are too extreme. Patents are the only thing that can possibly empower inventors from being copied. It doesn’t always work out properly and there are a lot of defects in the system, but the meme you are repeating is a dangerous one due to it leading to tossing the whole system out. When the Senate reconvenes in on 9/6 they will be voting on the America Invents Act, which will make the system much worse for entrepreneurs than it is today. I have posted more info on that here: