The Case For Patents Harming Innovation

from the fleeting-competitive-advantage dept

Last year, we noted that SAP was one of a few big tech companies that had mostly avoided stocking up on software patents, claiming that the company was in the business of selling products, not intellectual property. It appears things may be changing. Patrick Ross at PFFI (huge supporters of software patents) points to a quote from SAP talking about how they're now increasing their patent activities with this quote that goes against what we heard just a few months ago: "Those who drive innovation need patents. Those who don't imitate." Tim Lee rips this logic to shreds beautifully by saying: "In the past, SAP was an innovative company that was able to stay ahead of the competition by virtue of their superior technology. However, now that they're a fat, lazy incumbent, they're discovering the joys of using patent law as a club against their more innovative competitors." What's much more likely, is that it's not this rush to innovate that's driving SAP's newly discovered love of patents, but the recognition that with patent litigation today, software patents are all about nuclear stockpiling. You need to have as many patents as possible, so that when you're sued, you can sue back. What that has to do with innovation is well beyond us.

However, the more important point comes later in Lee's analysis. He basically picks up on the point we've been suggesting for a while. Companies and investors love things like patents because they think it gives them a "sustainable competitive advantage." However, a really sustainable competitive advantage means you don't have to innovate, and society ends up losing out because the fat, lazy incumbent isn't driving any new innovation. Competition drives innovation, and it's an ongoing process. Instead of a sustainable competitive advantage a successful business is really about repeatedly innovating to build continual fleeting competitive advantages. That is, you keep innovating and it no longer matters if your competitors are just copying you -- you have the advantage in the marketplace by actually innovating. This keeps innovation going, rather than stagnating, and it brings to market much better products. All without the need for patents. As Lee correctly points out, this might mean the original creator doesn't get to squeeze every last right out of something -- but that's actually better for everyone. It drives the companies to continue to be innovative, creates real competition, a real market, and better products for everyone.

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  1. identicon
    Tyshaun, 18 Jan 2006 @ 8:24am

    Re: Do your homework first...

    I think I know a fair bit about patent law and I'm always amused when people use language like "It is obvious to me that you know NOTHING..." and "You obviously didn't do your homework as far as patenting is concerned..."
    First, for your etification there are products on the market that are single patent solution, usually this occurs in the pharmaceutical market and not in areas of high technology (programming, devices, etc). The patent problem is more than just a technology one remember.
    Second, my intent in saying that patents would have to be used in 5 years doesn't mean that companies have to necessarily use them themselves. I am well aware of companies like IBM etc that have generated standards for years that they haven't necessarily used, however, the fact that they give permission to others to use the standard, and their is interest in the standard, is the point of my suggestion. Perhaps the idea was to complicated for your obviously narrow way of thinking but the point of the 5 year restriction is simply to say that if someone gets a patent, somehow it needs to be implemented in a solution within a reasonable period of time to prevent companies from generating portfolios of "future tech" that they have no intent on using EVER, and wait for others to come up with the idea and sue them.
    My suggestions were just that, suggestions. Of course they don't address every particular case, but I do think the assertion that I know nothing about the process shows only that you have a fairly caustic manner of discussing and critiquing others ideas. I leave my response with two simple questions:
    1. How many patents do you hold?
    2. What "dude" would you do to alleviate the problem?

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