Do Patents Really Kill Innovation?
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
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