Regarding patents

There’s a lot of back and forth going on in the debate about patents — and by conflation trademarks and copyrights — these days. Everyone has an opinion, pro or con, informed or emotional, engaged or dismissive. And that’s good, because like it or not, the current patent debate matters.

It’s easy to think that patents are only something that concerns companies and lawyers, the rich and the litigious. But that’s not the case at all. Today’s abstract patent case is tomorrow’s loss of a gadget or an app. Already Apple has a temporary injunction that prevents Samsung from resupplying Galaxy Tab 10.1′s in most of Europe. If it’s not overturned soon, a consumer walking into the store in Germany may not be able to buy the device the device they want to buy. Likewise, Lodsys’ lawsuits against developers has caused some to consider removing their apps from the US market. That means a consumer going to the App Store might not be able to buy the software they want to buy.

This stuff matters to consumers not just in the abstract sense that we should all take an active roll in shaping the societies in which we live, but in the real sense that that they directly effect what we can and can’t buy.

And we don’t have to be experts, versed in every facet of patent law to understand that, or to be righteously indignant about the current state of patents in the US and internationally any more than we need to be physicist to worry about radiation or social scientists to worry about civil rights. Its impossible for everyone to understand everything about every issue. It’s impossible for our lawmakers to understand everything about every issue. Based on observation, it’s impossible for those charged with applying the laws to understand them completely.

But we understand something. We see crazy patent after crazy patent, granted years after the technology has become public, ignoring prior art, ignoring obviousness, and we see the gadgets and apps we want distracted and derailed by crazy lawsuit after lawsuit, and we — the non-patent-law-educated-public — think something is broken.

“Perception is reality” is a cliché for a reason — while perception isn’t reality public perception certainly can sway and shape reality and right now, whether you agree with the current patent system or not there seems to be a general public perception, at least among technology enthusiasts, that the system isn’t really serving the public interest. That the USPTO has almost abdicated its role in determining the validity of patents and simply grants almost all of them, preferring to let companies and individuals determine validity through costly, time consuming, and disruptive litigation.

Whether there’s an answer or not isn’t the point for right now. Whether companies should be amassing giant, nuclear-like stockpiles of patents to deter lawsuits, whether non-practicing entires (often trolls) should be allowed to sue independent developers, whether the USPTO should grant patents with so much prior art my grandmother would find them obviously flawed, whether or not you even care about patents — the discussion is important. It matters, to the companies that make our gadgets, to the developers that make our apps, and to us, who ultimately get those gadgets and apps or not.

It matters.

[Recommended reading: Nilay Patel, Marco Arment]