Driving Patent Reform

Patents are a problem. If you don't patent you face the risk of having someone else patenting your invention, and then coming after you. If you do patent you spend a lot of money for no clear return. Then there's the matter of others' patents that can make it impossible to operate your business without infringing. Even if you don't infringe, courts often side the patent holder regardless. The problem is pernicious, broad and very expensive.

There has been much talk of patent reform, ranging from getting the patent office (USPTO in the US) to pay attention to more and better prior art, to disallowing business method and software patents, better tests for obviousness, and improved legal processes. It isn't hard to find deeply passionate proponents both pro and anti reform. My own views run more in the pro reform direction, but are not extreme. I see some benefits to patents and legal protections, outside of those strictly pertaining to technology start-ups.

With this background, I found this article quite interesting, which notes that the USPTO now issues a majority of patents to foreigners and that the trend is accelerating. We could see a time in the not-distant future, perhaps only 5 years, when non-US corporations use the US patent and legal systems to seriously imperil US-based corporations. This is simply statistical since patent disputes will increasingly involve foreign corporations charging US corporations with infringement, using US courts and patents.

My speculation is that this outcome could finally drive serious patent reform in the US, when it is US businesses that are primarily imperiled by infringement of weak and questionable patents. That is, the issue will become intensely political. I will be watching developments to see if I might be right. If the US does reform, however, it is not clear is other countries will follow suit with their own patent systems. The political forces are complex and difficult to predict.