Yesterday a patent reform bill passed in the Senate, but the sound and fury don't seem to signify much. The legislation as it evolved has shed most of the features that could have been controversial, or could have significantly improved the current patent system. The press around this legislation, and most recently the New York Times, continues to perpetuate ancient myths of innovation.
One of the hardiest myths of the patent system is that it drives innovation by inspiring lonely geniuses laboring in their garages. Like other durable myths, it contains a small grain of truth and a huge dollop of fancy. Few if any significant technology innovations come from isolated individuals. Individual inventors may hope that a patent will produce great riches, but for the most part patents cost the inventor many more dollars than they yield. The percentage of patents that become profitable products is tiny. The myth of the lone inventor is not just wrong, but also pernicious, since it creates a rosy glow around the patent system that makes it difficult to see and address the real problems.
So it's disheartening to see a source as respected as the New York Times perpetuating the myth. In an editorial yesterday, the Times led the cheerleading for the patent reform bill now pending in the Senate. Its primary argument was that patent reform would better protect small inventors. That's almost certainly wrong, since most small inventors will lose under either system. But worse, it ignores, and encourages others to ignore, the real issue. The point of the patent system is to benefit society through innovation. It makes no sense to grant patent monopolies unless we're confident that such grants encourage innovation.
Gradually it's becoming more widely understood that in some situations, including with software, patents hinder innovation, rather than encouraging it. There are now thousands upon thousands of software patents written in vague terms that may be used to threaten innovators who have never seen the patents. For a new software product of any complexity, there's no practical way of searching such patents to rule out with certainty the possibility of an infringement claim. An increasing number of companies, sometimes called Non-Practicing Entities (or, less politely, trolls), are entering the business of exploiting the system by acquiring patents and asserting them against innovative companies. Simply defending a claim of patent infringement may cost several millions of dollars – an expense for a small, innovative company that may be ruinous.
As my colleague Erick Robinson pointed out last week, the reforms in the new bill passed by the Senate don't do much to address the serious problems with the U.S. patent system. The really fundamental problems with the system for software innovation are not being discussed in the current debate. It would be a shame if anyone thought this was real reform and a greater shame if the legislation delayed efforts to achieve meaningful reform.