Patents are in the news in the tech circle more and more these days. As trolls lurk under bridges and the portfolio cold war gets hotter and hotter, everyone is talking about the fact that something is wrong. What exactly that something is, however, is up for debate. Should the patent system be abolished? What about just software patents? Is the term too long? I don't know, maybe. But one of the primary issues, from my view as a web startup developer, is that what's obvious isn't really so obvious anymore.
Patents were established as part of a way to codify the Constitution's Copyright Clause attempting to promote science and the "useful arts." They grant a limited term of exclusivity for inventors in exchange for publishing the means to reproduce the invention. In theory, this is a win-win: the inventor gets to make money off of their invention and the public gets to know how it's made. Other individuals or companies can even license the right to reproduce the invention before the patent has expired so it may reach even more people than it would otherwise.
I'm not going to get into arguments about whether or not the patent system as a whole encourages innovation in modern times. However, one of the requirements of getting a patent is that it not be obvious to "a person having ordinary skill in the art." I believe that this requirement is no longer adequately strict for patent issuance due to three fundamental differences between the establishment of the system and today's field of "inventors": population, communication, and specialization.
Matters of Population
There are more than 300 million people in America, more than 100 times as many as when the country was founded. That means that for any given "art" there's a great number more people in any particular field than there used to be. So how does this affect obviousness?
If eight people out of ten couldn't figure out how to do something, maybe it's reasonable to let the one out of two that figured it out first get a patent on it. That incentivizes the two that can figure it out to figure it out because there's a real chance that they'll break ground first and make some money off of it.
So let's increase the field's population a bit. Now let's apply the same ratio to an invention but there's 1,000 people in the field. That means that 800 out of 1000 would find it non-obvious, but 200 out of 1000 would. A person of "ordinary skill in the art" still would allow the patent to be issued, but now we're talking about 200 separate people who would find it obvious. This isn't inherently a problem if all inventions existed in a vacuum, but most often patented ideas (especially in software) represent only part of a larger vision or system. That means that because one out of 200 people happened to register for a patent first, their larger system is in the clear while 199 others that could be solving totally different problems but using the same invention as a part of their larger vision are now in jeopardy of owing licensing fees or being barred from pursuing matters entirely.
In modern America any given field will have tens of thousands of people all working, collaborating, and inventing. To posit that the standard by which exclusive, multi-year rights to something should be given to something that's non-obvious to the average person doesn't ring true. It should be something unique and groundbreaking enough to be non-obvious to the vast majority of people in the field. To merit exclusivity, it should be something so beneficial that the inventor would fight tooth and nail to keep it secret were the advantages of patents unavailable. Instead, hundreds of patents are issued for mundane, completely foreseeable advancements in the art. Just because something is non-obvious to most people doesn't make it a breakthrough invention.
Proliferances of Communication
Can you even imagine how things must have worked back in the late 18th century? What would it have been like to be a scientist, a researcher, an inventor? Compared to the always-on global communications networks that researchers, engineers and inventors have today it's an entirely different world. Lots has been written about how the world is "shrinking" as both travel and communication between disparate places becomes easier and easier, and the same goes for the inventive communities who are churning out patents.
This readily available communication has the effect of making all participants in a field effectively smarter than they would be otherwise: if I don't know how to do something, I can just Google it and now I do. This has implications again for the consideration of the "obviousness" of patents. Are many of the things patented today non-obvious to a person of average skill in the art with access to the internet? I'm not so sure.
Over the course of our society's development we have gone from an agrarian society to an industrial one and now to an informational one. The level of specialization found in the modern creative force makes it pretty difficult to tell exactly who should be considered a person with "average skill in the art." As a disclaimer, I'm not actually sure how the courts currently make such decisions, but it surely is a more complicated question than it used to be. Where do we draw lines of separation for the "arts"?
Is the peer group for a new mobile device patent other mobile device engineers? Is it other device engineers? All electrical engineers? I'm not honestly sure how you would draw that distinction and where you draw the line will drastically effect the determination of average skill in the art.
So what is to be done about the patent problem? Well, my guess is that the growing tsunami of patent litigation is going to lead to some kind of change in the law. The current situation is pretty untenable, and I think it's only going to become more so. Something big will break loose in the next few years and I think the landscape is going to change dramatically.
There are multiple fronts on which the current patent system seems to be at odds with proper innovation, and one of the biggest problems in my eyes is that it is only larger, heavily established and heavily funded companies that are even trying to get patents. You don't see garage startups wasting their time trying to eke out software patents: they're too busy building. It's not until a company is big enough that it can afford to split its focus and hire patent attorneys and do what is necessary to start "protecting" its IP. That bothers me, because it's propping up a system of innovation where only the big established players have a chance to exclusivity on their "inventions," and in my mind those are the people who need protection the least.
Technology moves orders of magnitude faster than it did in "the old days" and I'm not even sure where patents fit anymore. 18 years is several lifetimes by current standards of advancement, and to lock up a technology for that long is equivalent to locking it up for the entire span of its usefulness.
Coming from an open source software advocacy background, patents seem like a greedy, antiquated version of what thousands do every day for free: sharing their technology with the world for the benefit of everyone (the creator included). In a world where everything can change in a matter of months, I think it's time to stop worrying about protecting IP and time to focus solely on creating things of lasting value. Don't keep your competitors from using your innovations, just make newer and better innovations that outpace them.