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Oct 02 2012

The patent mess: why and how

Everyone who even occasionally reads about the endless rounds of high-dollar patent litigation (think Apple vs. Samsung) or the abuse of purchased patents by shell companies with no business other than to carpet-bomb an industry with patent claims (“trolling”) knows that the patent system has seriously broken over the last 30 years. Processes and methods that were never considered patentable before suddenly were, and have spawned an enormous legal industry generating billions of dollars in claims and counterclaims. Small entrepreneurs face the impossible task of determining, before they even begin shipping a product, whether they might violate some obscure patent somewhere, even one that may not yet have been granted, but which could put the company out of business overnight.

Last year a little-known software company, which had licensed to Apple a patented software component for use in Apple’s developer tools, then sued a number of small independent developers for using those tools from Apple, claiming that each and every one of them needed its own license. But the tools came from Apple which of course already had a license. This would be like licensing a car company to use a new kind of windshield wiper — and then requiring every buyer of those cars to get a license, too.

How did we get to this absurd state, where lawyers effectively beat down innovation and claim patents for shapes and clicks? Because one court with enormous power decided to turn a hundred years of patent precedent on its head. Here’s the story.

How a rogue appeals court wrecked the patent system