In a recent editorial in the Wall Street Journal entitled Digital Innovators vs. the Patent Trolls, Peter Huber, a senior fellow at the Manhattan Institute, argues that software patents are the shotguns that kill innovation (my analogy) and that non-practicing entities (NPEs derisively referred to as “patent trolls”) are pulling the trigger (again, my analogy). I disagree.
Peter Huber makes some contradictory and misleading arguments where he claims that non-practicing entities are ruining innovation in America. On the one hand, he acknowledges that only a small percentage of patents, roughly 2% by his own estimate, end up court. Yet he also believes that “[o]ur patent laws have drifted way off course.” He states that “[t]he patent office now grants more than 4,000 patents a week” but neglects to mention that the total number of patent applications and the number of patent rejections have both similarly risen. And one major goal of USPTO director David Kappos, appointed in 2009 by President Obama, is to reduce the backlog of 1.2 million patents around the time he took office. Many more patents are being submitted and examined than ever before-—a sign of the vigorous spirit of innovation in America.
Dr. Huber’s logic is equally baffling when he claims that companies rarely sue each other but that companies spend lots of money collecting patents. Why would a company spend so much on worthless patents? Patents are used to protect their investments in technology, and the vast majority of patent lawsuits are between large corporations like the recent ones between Oracle and Google, Apple and Samsung, Dish Network and Tivo, and many, many others.
Dr. Huber claims that the Supreme Court’s decision in Bilski v. Kappos somehow agrees with his view that patentability must be restricted. In fact, this decision did just the opposite. While business method patents were rejected by the court, as expected, the patentability of software was expanded.
Dr. Huber claims that plaintiffs in the Eastern District of Texas almost blindly reward plaintiffs in patent cases, but a recent study by the Stanford
Intellectual Property Clearinghouse showed that plaintiffs in that jurisdiction win only 40.3% of the time.
Finally Dr. Huber gets to his point. Patent examiners and juries just aren’t smart enough to figure out which patents are good and which are “sketchy.” So instead, he wants the patent system changed to restrict inventors from owning the fruits of their intellectual labor. As an individual inventor I object to his condescension and to his attempt to limit this constitutionally protected driver of American innovation.
