I suspect a few of you have either unsubscribed or are holding your fire... My efforts to put chum in the water with Part 1 have failed to evoke a single comment from the millions of subscribers to this blog. Stunning. Truly stunning. And a rebuke to the interactive future of all things blog...
But perhaps it's just that those who wanted to comment knew I was setting them up. So that's what I'll think -- you're too smart to be suckered in. Yep, Part 1 was a bit of a stage creation where all patents are created equal. Where all patents are GOOD patents. You've impressed me by not falling for my crass attempts and remaining silent.
In the silence, a point has been scored for the distinction between trolls and patents themselves. For this is the forest that is missed in the trees of frustration around the trolls' behavior. For I would posit that the troll that angers us is really a scapegoat for the property around which headlines have been made. Is the patent truly an invention? Is the patent an obvious (albeit enabling) tech for a complex computer/network/software system architecture and part of hundreds (thousands?) of aggregated improvements or is it a single, standalone god-like advance? Is it Internet software that moves at the speed of light or is it life saving or tremendously value enhancing novel insight that no one had done before and creates the foundation of dramatic societal/technological/economic advance?
It is this question that I fear is lost in today's discussion about trolls. Witness the latest CNNMoney article on Myhrvold's venture. The HP guy comes across as an absolute idiot - so you should only license patents that relate to operating businesses you participate in? C'mon! Get a life. You license a patent because someone else can create value where you can't -- that's the whole point dufus. Taken to its logical conclusion, the HP guy is saying that patent licensing has no role -- either practice the invention (and block others) or go home. That's just inane and I hope (and pray) the writer just took him out of context.
But back to the point here, patent litigation is frequently about where someone appropriated all that value creation for themselves. Believe me, I know -- patent lawsuits suck. But all lawsuits suck, so let's not point fingers and say patent lawsuits are really all that different from others. The bigger problem is in how the patents get awarded and the timeframes around them. I'm delighted to see the Supremes taking up the question of obviousness, for I think THIS is a key part of the answer to our current mess. I'm also generally delighted to see the expansion of the definition of prior art given the reality of today's search technology -- again, this is a big step forward (albeit painful in some specific cases near-term as we advance the search ball).
Here's the punchline for the hook I set earlier: the trolls aren't the problem, the way patents are evaluated and issued is the area that needs improvement. I'll come back to that later in the series...
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