In an interview with Tech Crunch published yesterday, Kent Walker, Google’s Senior Vice President and General Counsel, proclaimed: “A patent isn’t innovation. It’s the right to block someone else from innovating.” How someone who has achieved such a high profile position with one of the tech giants of the world could have such an erroneous, even myopic, view of patents is nearly astonishing. It is self evident to anyone who objectively looks at the patent system as it relates to innovation that patents do not block innovation, but rather they encourage innovation. That has always been the case. Obviously there is more to Walker’s statement than meets the eye.
Earlier today Florian Mueller (FOSS Patents) published an excellent article critiquing all of Walker’s statements in the Tech Crunch interview. Although Mueller explains that he largely agrees with Walker’s viewpoint on much of what he says, he seems to put his finger squarely on the matter at hand: Google is currently suffering from numerous patent problems. This leads Mueller to conclude:
I can’t help but view all of their criticism of the patent system as being motivated by their current problems. Looking at how their position has changed over time, and how self-contradictory it is in some ways, I guess Google’s position may easily change again as soon as they’ve managed to buy a large patent portfolio in some kind of auction or other transaction.
Indeed, it seems quite apparent that Walker’s statement about patents preventing innovation displays more frustration than comprehension of complicated issues. If you read further into the Tech Crunch interview you see that he then starts to discuss some of the very unfortunate realities currently plaguing the patent system. He correctly points out: “An average patent examiner gets 15 to 20 hours per patent to see if it’s valid. It can take years to go back and correct mistakes. It has become a kind of lottery.” Any fair minded observer has to agree with the first two sentences, and understand why someone would come to the conclusion in the third sentence. There are not enough patent examiners, they don’t receive enough time to work on applications, even with inadequate time per application the patent backlog is still unacceptably out of control and Congress continues to be almost arrogantly unwilling to fix the USPTO.
But this still doesn’t explain exactly why Walker thinks patents prevent innovation, at least not directly. The truth is that the mantra of many of the tech giants today is that patents block innovation and should be abolished or at the very least limited. Of course, all of these tech giants have enormous patent portfolios, which should lead start-ups and small businesses to question a business strategy that doesn’t include obtaining at least some patents. If it is a good strategy for Google and others then why not for you? In any event, the Google anti-patent opinions in the face of an enormous patent portfolio can in part be chalked up to the business reality that you must have patents to survive in the technology industry. As Tech Crunch explains, despite Walker’s loathing of the patent system (at least for the moment) Google continues to hunt “for some nuclear warheads to build towards mutual assured destruction, and eventually détente.”
The mutually assured destruction approach to patenting can explain in part why large companies continue to patent at the rate they do, but the justification completely misses the point that these large tech giants were not always large. They were, at one time, rather small companies that pursued an aggressive agenda of innovation. A big part of that innovation strategy included obtaining protection for said innovation, largely in the form of acquiring patents. That undeniable truth makes it hard not to question whether the tech giants that lament the failings of the patent system and want to limit or abolish it are simply engaging in good old-fashioned protectionism.
The tech giants of today innovated, protected, grew from small to giant size and now want to make it harder for anyone else to build a small company into a true competitor. The easiest way to do that is to prevent or limit patenting activity. That starves small businesses from investment capital (because investors love patents) and means that tech giants could simply copy (i.e., steal) the innovations of others without fear of consequences.
Of course, the fallacy being peddled is that a patent blocks innovation. Patents do not block innovation, they block copying. By preventing copying (i.e., infringement) the existence of a patent makes it necessary for companies to engineer around patented technologies, which pushes the envelope of innovation. Throughout history whenever a patent or patent portfolio has been claimed to be blocking a careful consideration of the facts shows that industry wanted to copy rather than innovate alternative solutions. Lethargy is largely to blame for lack of engineering around, not a patent.
Of course, it is true that patents indirectly block innovation for some companies, but this has nothing to do with a patent grant that is too strong or a dysfunctional patent system. Any particular company that is indirectly blocked by patents finds this to be true for one of two reasons. First, the company itself is not an innovator and can only engage in copying the success of what other, truly creative innovators have done. Second, the company does not actually respect patent rights and doesn’t care to look to see what has been or is being patented by others. If you fail to look to see whether what you do is going to infringe you simply keep blinders on and do whatever you want. Then you wake up and realize that you are doing what someone else has patented. That shouldn’t lead to a temper tantrum that causes one to rail against patents, rather it should lead to self examination relating to why you proceeded so recklessly. Yes, moving forward with conscious disregard for what others are patenting or have patented is hardly appropriate business judgment; it is reckless!
Mueller sums up what I refer to as Google’s reckless behavior by pointing out: “Google’s track record in respecting intellectual property rights is problematic to say the least. Think of YouTube or Google’s aggressive approach to its Google Books project.” Knowing as we do that Google has a track record of innovation that means that if Google is being blocked by patents it is because they simply do not respect intellectual property rights owned by others and, as a result, engage in wholly inappropriate and reckless business activities. I guess shareholders are content with Google presently, but I would love to see a shareholder lawsuit someday against a tech giant that simply refuses to respect intellectual property rights. Keeping their head in the sand, wasting thousands upon thousands of hours developing products that will ultimately infringe and then paying large damage awards or licensing fees because they chose not to engineer around is just bad business, and a waste of time and money.
Reinventing something means it is new to you, but not new to the world. By its very essence the patent system forces invention, not reinvention, which is just another word for “infringement.” The fact that Google frustrates its own ability to innovate isn’t a patent system problem, but rather a Google problem.
So the truth isn’t that patents block innovation, but rather that the business practices of Google and other tech giants block innovation. Rather than push the envelope forward into new territory, building upon the contributions of others, Google and many other tech giants simply close their eyes and do what they want. That has never been a strategy to advance innovation. Innovation thrives, as does scientific advancement in general, when creative, intelligent and motivated minds seek to build upon the work of others.
Of course, the patent system can and should work better. It shouldn’t take so long to get a patent and patent examiners should be given more time to work on patent applications. In a perfect world the problem of patent trolls would be adequately addressed. Of course, there are easy solutions to the problems faced by the USPTO and the problems presented by patent trolls. With respect to patent trolls, for example, there are rules on the books that would prevent the egregious actions of the bad actors if only actually utilized by district court judges (see Rule 11 of the Federal Rules of Civil Procedure). Of course, the mere fact that a patent infringement action is brought does not mean the plaintiff is a patent troll. Rather, it typically means there is infringement of a valid right and that deserves to be compensated by the tortfeasor / infringer.
The failure of Congress to fix the USPTO and the failure of the Courts to prevent shake-down litigation in the patent litigation arena lead to many fair and valid criticisms. Unfortunately, those valid criticisms tend to feed an anti-patent agenda and lead those who should know better to condemn the patent grant itself. Patents are not the problem, the system is the problem. Until we fix the system the problems endemic within the system will be used to support illogical arguments that sway public opinion and capture the imagination of uninformed leaders in Washington, D.C.
Patents don’t block innovation, those who capitulate and run around like chicken-little block innovation. It really is just that simple.