The Patent System Does Not Scale

from the bad-patents,-bad dept

For the past five years, one of the points we've raised repeatedly in discussing the problems with the patent system is the simple fact that patent examiners don't scale. The system we have today where every invention needs to be reviewed and approved by examiners at the Patent Office is inherently unsustainable given the general pace of innovation, which increases rapidly. And for a patent office to actually handle that kind of thing, it would need to keep increasing its staffing levels, while hiring the absolute top of the top. That's simply impossible. Honestly, the very idea that you would have a group of people "certifying" every invention is pretty absurd when you think about it -- and it's a point we've brought up a few more times over the years, because it's important, and doesn't get much attention.

So, it's great to see others are starting to make this point as well. Red Monk analyst Stephen O'Grady has a great post explaining that it's because of that scalability issue, that he's against software patents (he limits it to software given that being his own experience area):
The reason I am against software patents is, by contrast, very simple. It's not rooted in philosophy, it doesn't involve theories of good or evil; it's not even about debating what is likely to spur more or less innovation.

I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.

In addition to questions of volume are issues of expertise; for some of the proposed inventions, there may only be a handful of people in the world qualified to actually make a judgment on whether a development is sufficiently innovative so as to justify a patent. None of those people, presumably, will be employed by the patent office. Nor are the incentives for fact witnesses remotely sufficient. Nor will two developers always come to the same conclusions as to the degree to which a given invention is unique....

If we acknowledge that this is the case, which I believe one must if the available evidence is considered, then it is no longer possible -- whatever your philosophical viewpoint -- to be in favor of software patents.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: patents


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    ChurchHatesTucker (profile), 31 Mar 2010 @ 9:25am

    Re: Agree

    "Copyright is useful to protect against the cloners, not against the rest of the software development community."

    Agreed, the problem is that it won't stop lawsuits from people claiming that you used, say, 75% the same code.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.