Bonum Certa Men Certa

The Patent System Not What it Used to be, Large Corporations and Patent Lawyers the Principal Beneficiaries

Ensuring that rich people become even richer, resistant to challenge

NYC



Summary: A look at some recent patent stories and what can be deduced from them, based on statistics and trends

THE HUGE news (in our assessment) that no Free software and GNU/Linux sites ever talk about is the fast demise of software patents in the United States. The prospects of patent blackmail are greatly affected (vastly diminished) by this. It helps any unaffiliated (independent from corporations and thus autonomous) software project compete against big entities with patents -- those that have been shutting down Free software projects for years, usually by means of intimidation alone. Indie Free software developers cannot afford days in court and the income they receive from Free software they develop tends to be zero or very little, so the incentive to go to court is reasonably low.



Not only software patents are affected but patents on business methods are too. As this one article put it a fortnight ago: "Each panelist had a very interesting perspective on the future of patents held by banking and financial services firms, where the majority of these patents are primarily business methods and software related."

Debates about patent scope are important. Some wonder whether drugs should be patentable (ethical issues arise because of potentially mortal impact) and other wonder about patenting medical devices so as to price them out of reach, if not just monopolise them, thus making them more scarce (unavailable in poorer places or inaccessible to poor people).

"No matter who wins and who loses a case, patent lawyers will always profit from it."Patents originally promised 'protection' for the little independent inventor, supposedly protecting him or her from much better funded corporations with copycats and mass production. In reality, as these new figures serve to show, patents are being hoarded or at least gathered mostly by large corporations, perhaps reminding us who is best served by today's patent system. It's getting worse -- and fast! The past decade alone has been terrible amd the passage of power to large corporations accelerated, as evidenced by patents. As Patently-O puts it: "As with dependent claims, the average number of independent claims per patent has also dropped significantly over the past decade. (From around 3.2 to 2.5 independent claims per patent). As the histogram shows below, the decline comes primarily from a rise in the percentage of applications with three-or-fewer independent claims."

Many thanks to Dennis Crouch for shattering a common myth about 'protection' for the little independent inventor. This myth is now dead. Crouch attributes this to costs and explains that "change is largely driven by PTO fees and the ongoing commodification of patent prosecution."

The system is now just tilted in favour of large corporations. The Fitbit-Jawbone feud which we mentioned the other day is still in the news [1, 2] and it helps remind us who benefits the most from patent extravaganza (more so than corporations): patent lawyers. No matter who wins and who loses a case, patent lawyers will always profit from it. Patent litigation is a racket and a racket that needs to be ended, just like Major General Smedley Butler once explained in relation to the war industry.

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