Patents: Protection or threat?

The mission of the United States Patent & Trademark Office (USPTO) is to promote “industrial and technological progress in the United States and strengthen the national economy.” To most reasonable individuals, that means the intent for patents and trademarks is for protection of ideas with which to innovate and financially benefit from sweat and effort in building something instead of using patents and trademarks alone to create and run “idea toll roads” with toll-booths collecting fees.

Last year I began reading articles like this one, and this one, along with the Electronic Frontier Foundation’s efforts that talked about the growing threat from patents on innovation and against open source. Knowing Microsoft’s opinions about open source as an example — coupled with the size of their cash hoard and ability to stave off legal threats for years — their possible use of patents as a weapon seem to be assured.

Today’s CNet article by Richard Stallman was an interesting counterpoint to Bill Gates’ recent comment that “There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don’t think that those incentives should exist.” (good overview of the controversy here).

Former Microsoft CTO Nathan Myhrvold obviously saw the same intellectual property light Bill Gates has seen and doesn’t intend to let “communists” do anything for free when someone damn well should be paid for it. Patent as many ideas as you can — even if just thought about as possibilities — and you’ll own the idea toll road and can set up the toll-booth.

Myhrvold started an “idea toll road” company five years ago (Intellectual Ventures) that is focused on a strategy to “create or buy new ideas, accumulate patents–exclusive rights to use the inventions–and rent those ideas to companies that need them to do the gritty work of producing real products.”

How is he doing this? As it says in the article, “To generate patentable ideas, Intellectual Ventures hired a dozen top scientists as part-time consultants to participate in several all-day gabfests each month, which the company calls “invention sessions.” Lawyers transcribe the discussions, which can range from biotech to nanotech to solid-state physics, and follow up on the most promising ideas with patent applications.” He’s obviously the most visible person involved in this activity. Pretty soon (if not already) *any* idea you have had better be fully patent-researched before you embark on a new adventure.

In my view, using patents and trademarks to “own” ideas and corner-the-market in some given area is going to seriously hamper innovation and people taking risks to start up companies.