Our Misguided Focus on Patents
April 14th, 2010
Is it patented? Can we patent that? We need a @#!$%& patent and we need it now! You hear that a lot these days. Everyone wants to be part of the new economy, the thinking economy, and patents are the key, right? No.
Patents are the results of something – good, old-fashioned innovation. The big mistake companies make is to focus directly on patents instead of focusing on innovation which can then be patented. Sounds like a subtle difference, but it’s as subtle as the difference between lightning and lightning bug. (Stolen from Mark Twain.)
Patents are the currency of innovation, not the innovation itself, just as our paper money is the currency for wealth, and not the gold reserve itself. We use paper money to stand for the gold, but, implicitly, there’s wealth backing it up. Just as it’s misguided for a country to print money without something to back it up (strong gold reserves), it’s misguided for a company to create patents without something to back them up – innovative technologies, technologies that make a difference to the customer.
Innovation is the gold that backs up patents, the currency of innovation.
Would you rather have lots of paper money and no gold, or lots of gold that allows you to print lots of money? We get this one wrong when we focus on paper patents instead of golden innovation. Why do we mess it up? Because printing money and filing patents are easy, and digging gold and doing innovation are hard. Patents are fast and innovation is slow. Companies want the free lunch, there’s no such thing.
What to do when there are no patents? Do innovation. What to do when there is no time to do innovation? Do innovation. What to do when there is no money to do innovation? Do innovation. What to do? Do innovation.
The road to a full portfolio of innovative technologies is a long one, but it’s paved with gold.
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Mike Shipulski
Mike:
Mostly agree that patents aren’t (or shouldn’t be) worth the paper they are printed on unless there is a real invention or innovation being protected. However, there is, and I believe that there will always be a certain cache associated with being able to boast that something is patented because patents do also cover technologies that are true inventions (innovation)- you get the good with the bad and – to most who do not understand the patent laws, “patent” automatically means invention. However (and here comes the “mostly” part), in the event that there has been no invention, the patent will (should) most likely be found to be invalid during lengthy and expensive litigation. So herein lies the value of the “paper” patent. I have personally witnessed countless internal and sometimes external time and money client resources spent on avoiding the “infringement” of third party patents that everyone knows would (should) be found to be invalid during enforcement litigation in order to avoid the huge external costs associated with patent litigation.
Also – good defensible patents are not easy to get – sure, there are a lot of poorly written patent applications (including those covering non-inventive subject matter and those that are written without focus on the patent laws, which should largely determine how successful you are enforcing and defending a patent in court) that have somehow made their way through the USPTO to become patents. However, if one of these poorly written, poorly thought out patents does cover something truly important and the value of the underlying innovation is worth litigating over, a patent owner may find itself unable to protect valuable innovation where it counts – in the courts. Having said all this, I wholeheartedly agree that getting paper patents should not be a substitute for innovation and I have repeatedly taken the position with clients that “patent strategy” should not be to write a patent application for something that is not patentable, even as the client argues that the competition does it all the time.
Fran, you provide good perspective, and I agree with your points. In the post I painted with broad strokes with the hope of making a singular point — that patents are the result of something. With focus on good technical innovations that customer value, patents will fall nicely into place.
Good to hear from you.
Mike