Patently Absurd

05-29-2008 | 10:37 AM EST

What if I told you that someone had invented a device that will completely revolutionize society? It will make a number of other products completely obsolete, and it will make day-to-day living so much easier for many of us. Now what if I told you that you're never going to see the device, because the companies whose own products would be displaced and made irrelevant are using abusive litigation techniques to stop the device from ever coming to market? Would you believe this could happen? Would you say, "But that's exactly what the patent system is supposed to stop?" Well, at least one group says it's not only possible, but that it's happening as we speak.

In a perfect world (at least in my opinion), the products available to us, the music we listen to, the movies we watch, and everything else that society produces and consumes would be governed by merit alone. It's the old Emerson mousetrap quote, "Build a better mousetrap, and the world will beat a path to your door." And, while this is exactly the type of pro-innovation sentiment the United States' patent laws were created to reflect, organizations like the Coalition for Patent Fairness question whether the laws and processes as they currently stand are still up to the challenge.

The Coalition views "baseless patent claims" solely made "for the purpose of exploiting loopholes and imbalances in the patent system" as the root of the problem. Specifically, the Coalition members want to see a patent system that promotes "innovation for the good of inventors, consumers and the economy," and they believe that our system can be reformed to do just that. They argue that these baseless patent claims not only move us away from the innovation goal, but they even deter innovation. The Coalition writes:

"Business must redirect valuable financial resources that might otherwise go toward innovation and job creation. Engineers are spending time in depositions and doing defensive patenting, instead of creating the next great invention. Companies are increasingly becoming risk averse in this environment; they may decide not to bring new products or services to market because they do not want to incur the additional costs that result from an abusive patent claim. And all of these costs are eventually shouldered by consumers buying the products we use everyday in the form of a hidden 'innovation tax.'"

This concept of "risk aversion" is one I've mentioned several times now in previous posts. Essentially, when an aspect of the legal system (like patent or copyright law) develops a reputation for being used as a weapon where no real offense has been committed, individuals and small groups and organizations (the places where so many innovations seem to come from) get afraid to innovate. If you're an individual that came up with a terrific invention, wrote a great song, took a fantastic photograph, or created anything else, but what you produced is similar in any way to something already publicly available through some large corporation, you might think twice about ever going public with what you've done. You might simply decide that the costs, time, and stress of being in a lawsuit are just too great. It's unclear that anyone would ever sue you, but that threat just makes the whole thing not worth it. At that point, innovation truly is being stifled.

So, if you agree that merit really should determine what innovations, art, and other creations make it into the public market and become popular and if you agree that the patent system really should be promoting rather than stifling innovation, what can you do? One thing you can do is take a more thorough look at all the great information and ideas on the Coalition for Patent Fairness' website. If you're a software developer, you could consider releasing your work under the GPL license. By doing that, you'll help promote a more level playing field and you'll remove the "litigation risk" for people who would use your work in their own. If you're a photographer, musician, painter, or artist of any sort, you could consider making your work available under a Creative Commons license. Like the GPL, the Creative Commons' licenses will tell people who would use your work exactly how they can. Again, less fear equals more innovation. But, whatever you do, I hope that you'll consider how the companies you support through the products you choose, along with the example you set by how you make your own creations public, affect the role of innovation (and in turn the health) of your society.

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