In last week’s New York Times, Michael Crichton discussed the implications of a current patent case before the Supreme Court. The case centers around a biotechnology company claiming to have patented the relationship between two chemicals in the human body. Crichton masterfully expresses how ridiculous and dangerous the idea of patenting a fact is; for instance, doctors discussing vitamin B-12 deficiency could be forced to pay royalties for explaining a patient’s diagnosis.
As Crichton indicates, the patent system is fundamentally and frighteningly broken. The emphasis has moved from encouraging innovations-the stated purpose of patents in the U.S. Constitution-to encouraging greedy profiteers to extort both true innovators and others who could benefit from the technology. No process, observation or thought is safe from these so-called patent trolls.
The suit between Research in Motion (RIM), makers of the popular Blackberry PDA, and NTP Inc., is a case in point. The Blackberry has become a favorite of government workers and other members of our critical infrastructure, such as power company employees. NTP-which has no products or services-holds that RIM violated their patents on e-mail transmission to wireless devices, a straightforward concept that is obvious to anyone experienced with PDAs and computers. While many of the patents were invalidated, NTP’s case still threatened to shutdown the Blackberry e-mail service-potentially wreaking havoc among the critical industries and government agencies that use the Blackberry. RIM took one for the team and settled with NTP for $612.5 million.
Clearly, there is an extreme need for patent reform. Congress should prioritize it, as the risk of being sued by a patent troll discourages inventors from bringing new products to market. Possibly the courts could help by invalidating patents that infringe upon freedom of expression-such as the one before the Supreme Court-and striking down any patent laws that discourage innovation as a contradiction of the Constitution’s mandate that patents are “To promote the progress of science and useful arts.”
The reforms should focus on several areas. Software patents, which grant patentees rights over sets of computer instructions (algorithms), should be disallowed because the instructions are abstract thoughts; therefore, patenting them is a form of thought control. Also, programming is a form of expression, just like writing a newspaper article, and patenting an algorithm is analogous to patenting a particular style of essay or the haiku form of poetry.
In fact, patents should be limited to devices, particularly mechanical arrangements invented by the patent holder, that accomplish some describable task. In this way, a particular type of computer may be patented, but not the software that runs on it. Rather, the patent holder can profit by selling or licensing for sale a relevant, useful device-avoiding the Orwellian dangers of patenting facts, algorithms and other abstract thoughts.
Also, the rights of a patent owner should be limited. For example, building a machine is arguably a form of expression and thus protected by the First Amendment. So simply making or sharing something that is patented should not be considered a violation. Selling it for profit, though, is clearly a violation. Patents encourage innovation by allowing the patent holder a short monopoly on the market for their invention.
Potentially, one could give away someone else’s patented device for free to destroy the patent holder’s market advantage, but doing so should be banned as an anticompetitive act. Possibly a constitutional amendment is in order to change “exclusive rights” to “commercial rights” in the patent clause.
This system would also avoid the danger to society inherit in patenting medicines and other life saving devices. Today, a company holding the patent to a potentially lifesaving drug may refuse to let anyone produce it or limit supply to keep prices up, trading people’s lives for profits. As businesses, their actions make sense, but even though they do not intend harm, the narrow focus on profits necessary to survive economically risks lives. Limiting supply of Tamiflu makes good business sense for Roche, but it endangers people’s lives if a pandemic breaks out.
Nonprofits should be allowed to create and distribute patented goods for free so long as the intent is not to harm the patentee. The benefit to society outweighs the small potential for less innovation. This nonprofit rule should include allowing researchers to acquire or make materials to facilitate their research. After all, patents that prevent research hinder rather than help the advancement of science.
Check out Crichton’s article and see why the patent system is not just broken, but dangerously broken. As citizens and voters, we must make sure to take any steps we can-discuss the issue with each other, write our representatives and vote our minds-to ensure that patent law is reformed quickly and effectively.