The Problem with Patents and Some Solutions

First, a disclaimer: I am not a lawyer. My knowledge of the patent industry is limited solely to reading I’ve done over the last 10-15 years and a single college course on intellectual property law.

Patents aren’t solely a problem for the video game industry, but they can have a very big impact on the speed of innovation in game hardware and software.

Software patents are a particularly thorny issue because 1) they can be (and often are) ridiculously ambiguous, 2) software as a “medium” has only existed for roughly half a century, 3) large companies keep patent portfolios to insulate themselves from other large companies with patent portfolios, 4) patent trolls purchase large sets of ambiguous patents, don’t create jack squat with them, and then sue small entities (indie developers more often than not), and 5) software powers pretty much everything these days.

Most of the points above are self-explanatory, but I want to elaborate on the second a little more. Because the software industry has only existed for roughly half a century, many potential ideas are still new and untested. A patent’s term can last up to 20 years, roughly half of the time that video games as a medium have existed and a third of the time that software as a medium has existed. If an idea is locked up by a patent for twenty years, think how stifling that can be for exploration and innovation.

For a sense of perspective, if the World Wide Web had been patented on its inception, its patent wouldn’t have expired until 2011. Think about just how much of the most important technology relies on the open backbone of the web: Google search; streaming video; web applications like Dropbox, Flickr, or Google Docs; social networks like Facebook and Twitter; smartphones; and pretty much every major new publishing/media system of the last decade. Now imagine if those hadn’t existed or were just now starting to bloom.

Enough with the problems, how do we fix it?

Since software patents are already an entrenched system, we can’t do away with them outright. There are certainly things that could and should be done, though.

1. Staff up or source out. Patents up for review need more eyes to verify that they are legitimate, non-ambiguous, and worthwhile. The USPTO is already woefully understaffed, and many of their clerks are less experienced in software development than your average comp sci graduate. (They’re probably also probably underpaid compared to what an ambitious developer could make.) If there’s no way to pay extra bodies to review these with a more expert eye, then there should be a way to crowdsource the patent review process. Yes, there are quite a few snarls to unweave with that idea, but it *could* in theory be done.
2. Shorten term lengths for software patents. Moore’s Law stipulates that chip performance doubles roughly every two years. Software improvements rocket along with even greater velocity than the mechanical/chemical industries upon which the patent office was originally founded. Give patentees a grace period of roughly 1 to 2 years to take advantage of their lead, and then it should become public domain. (Hey, it worked for the ancient Greeks.)
3. Immediately invalidate all obviously ambiguous patents or patents with provable prior art. I’m sorry, but a patent for linking documents is simply ridiculous. As is trying to patent something people had been using for years prior. Don’t reward those who seek to abuse the system.
4. Require an actual product when patents are used in legislation. If you are suing others on the basis of a patent, but don’t have any product built on that patent, your claim should be considered null and void. The original intent of patents was to reward first creators, not first thinkers. Alternately require patent trolls to cover all defense fees if they lose the case (which they almost always do if it goes to court).

Until some sort of safety mechanisms like these can be put in place, patents will continue to make news as they lead to the opposite results they were originally created to encourage.

Image credit: opensourceway on Flickr