The Thrashing of Patents

It’s considered high-minded right now to come out railing against patents.  Everyone is doing it, from Mark Cuban to Fred Wilson to Twitter.

It seems to me that the picture is not quite as black and white as one might think.  Cuban talks (albeit a bit tongue in cheek) about a janitor being sued for a how they mop the floor.  However, are we to believe that if Cuban had come up with some special HD sauce while starting HDNet and patented it that he would not have defended it against potential infringement?

The issue, I think, is not with the use of patents but rather with the granting of them by the USPTO.  The people granting patents, I would imagine in most cases, have no real idea about the impact of the grant on the marketplace or whether or not it’s truly a unique idea.  With software patents in particular, there are so very few truly unique ideas  that the granting of them should come almost never.

I was involved in a patent dispute back when I worked for Bandwidth.com.  We had a competitor file a patent for how they were selling business Internet services online.  As a result of the filing, we had to file our own patent application as a defensive counter-measure.  It cost us a lot of money and a lot of time and ultimately meant nothing for either party.  There was nothing intrinsically unique about what either we or they were doing.

To me, these are the kinds of patents that we should throw into the “frivolous” bucket, and I think they are the patents everyone is most concerned about.  They are an extension of our bent toward litigation as a way to resolve disputes or gain advantage.

There are, however, legitimate patents that deserve protection.  Real money is invested, real innovation is discovered, and it should be protected.  I am not sure, however, that a better way to check out on an e-commerce website is something worthy of protection (as an example).