Shouldn't We See It As A Problem When Patents Are The Product Itself?

from the just-basic-common-sense-here... dept

Forbes has given some space to Alan Minsk, a patent lawyer who was in-house patent counsel for Openwave -- a company that we recently noted had decided to become a patent troll after failing in the marketplace -- as well as with Intellectual Ventures, perhaps the world's largest patent troll. In his column, he talks up how simply wonderful it is that companies have realized that patents aren't just about protecting products, but have become key products themselves. He seems positively gleeful at the idea of writing patents so broad that they cover entirely unrelated industries:

My own approach was to identify potentially patentable innovations (i.e., those that were not clearly unpatentable) that had a well-defined strategic value proposition, and then proceeding to seek patent protection for a broad-based interpretation of the underlying concept of those innovations.

Since many innovations represent a solution to a technical problem, this approach often involved determining other industries (or other situations within the same industry) in which a similar problem arose, and then generalizing the description of the innovation so that it could be used in those other industries or situations. This typically required developing a description of the underlying concept of the innovation in generic functional terms instead of implementation specific terms (a process I termed “functional deconstruction.”)

And, because the strategic value propositions (or use cases) for a patent often changed as a company developed and competed with others, my approach was an iterative one that was re-visited regularly in case a decision that was appropriate at one time was no longer appropriate because of new information. This applied both to patent application filing decisions and to those made during negotiations with the U.S. Patent and Trademark Office as part of the process of obtaining a patent.

In other words, not only did he try to patent things as broadly as possible to cover other industries, he would regularly try to broaden the patent as the market changed, even though the application was already ongoing. The whole thing seems to be bragging about the exact process of how to destroy competition and innovation in a market by locking it up in some vague piece of paper.

If we are to believe that the patent system was designed to "promote the progress" then it needs to be admitted that patents are never an end, but always a means -- a means to develop actual products that genuinely represent progress. And yet, that's not what they've been for quite some time, and it's highlighted by the idea that they should ever be considered primary products in and of themselves. That's a sign of a totally broken system. It may be one where patent lawyers like Minsk make out nicely, but it shows a failure of the system as a whole -- and when that happens we have a system that hinders, rather than aids, innovation.

Filed Under: alan minsk, patent troll, promote the progress
Companies: intellectual ventures, openwave