Issued patents don’t represent innovation

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Are patents symbols of innovation in this day and age?

My take: NO.

Today I went to the USPTO site on a whim to see whether I had any new issued patents (my last company had a huge patent portfolio with me as a co-inventor in over half of them.)   Lo and behold, 3 of them were newly issued.

This is gratifying since I got to update my issued patent list.  But it got me thinking about the whole system.

First of all, I should add that I do believe there is value in the patent system as a mechanism for startups and small companies to protect their core intellectual property, build an image as an innovator in their chosen domain, and shore up their valuation during fund raising activities.  Having mostly worked for startups with a hardware component, I have seen first hand how one can really monetize a strong patent portfolio and defend one’s position as a thought leader in the marketplace.

I agree with Brad Feld in general about the absurdity of software patents, but I believe

(a) novel hardware and human interface ideas are generally worth protecting,

(b) novel algorithms that deal with very complicated math/physics problems are generally worth protecting too (even if they are implemented in software).

That said, I have become increasingly disillusioned by the entire US Patent process as a way to protect and encourage innovation and invention.  Here are some anecdotes from my prior lives.

  • The US Patent Office allowed a patent application for which the WIPO (World Intellectual Property Organization)  found a piece of prior art it apparently read on.  We had to modify the claims for the WIPO filing and file an IDS (Information Disclosure Statement) with the US Patent Office about this new piece of prior art, which promptly issued the patent as is with no changes required in the claim set.
  • The US Patent Office once issued us a final rejection letter – with instructions on how to rewrite the claims and pay a fee so we can get it allowed in the next round.   (How’s that “final”?)
  • The US Patent Office let a few claims through which I believed was too broad to be defensible, and too nonspecific to protect the associated core technologies.  And I think some of them read on prior art.  This is, of course, our fault; we did a lousy job  on claims development.  Still, the fact that those claims came through said something about the due diligence that the patent examiner did NOT do.

It’s a fine theory that the patent process rewards novel inventions, but the reality is that the system is not equipped to tell the difference between a truly innovative idea and a truly pedestrian idea. Consequently, anyone with an adequate budget, a moderately articulate patent application, several years of patience, and substantial flexibility about the language of the claims can get their US patent application to eventually issue.  The only patents I’ve seen that aren’t issued are those that were abandoned due to lack of budget.

At this point, my personal opinion is that a strong patent portfolio is a business tool, and is fundamentally not correlated with whether a company owns any intellectual property of note, or has invented anything novel that is hard for competitors to imitate.   We pay to play in the high tech world and I suppose I have to be at peace with that.

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