I suppose it’s natural that your views on the patent system depend largely on who you are and where you stand. Thus it doesn’t surprise me that, according to a recent article, Sun Microsystem’s President and CEO Jonathan Schwartz thinks the U.S. is “too free to issue patents.” Striking a little closer to home, he also has some choice comments for “spurious litigators” (who? me?) who, supposedly, somehow stand in the way of “innovation.”
Curiously, Mr. Schwartz derides the patent system and slams those who enforce patents while his own company applies for and obtains patents at a prodigious rate. The difference, supposedly, is that Sun only gets these patents in order to ward off frivolous suits from less deserving patentees. According to Mr. Schwartz, Sun never engages in “offensive patent litigation.” “That’s not what we do for a living,” he said.
One of the benefits of getting older is gaining an historical perspective based on actual first-hand experience. When I began my career twenty years ago, software patents didn’t exist, contingent fee patent litigation was practically unheard of, and the overwhelming majority of patents were routinely dismissed by courts and defendants as virtually worthless. In those days, companies routinely dismissed the patent rights of others, particularly if they were small and unable to enforce their rights. Now that some teeth have been put back into the patent laws and contingent fee patent litigation makes it possible and practical for individuals and small companies to assert their rights, we hear from the big boys that asserting patents against them is not what the patent laws are for. With all due respect, I must ask: “Oh yeah? Says who?”
The truth is large companies have and will always have an advantage in patent litigation. They have the money and resources to throw all sorts of obstacles in a patent owner’s way. They have available to them at least two dozen separate defenses, any one of which will blow a patent owner out of the water if proved. They are now the beneficiaries of a court system that vests more and more decision making authority in the hands of a limited number of judges rather than in juries where it belongs. If a patent is “ridiculous” and improperly issued, it is a relatively simple matter to prove it. If these ideas are as old as the hills, come up with some prior art. It’s when companies can’t do this that they start complaining that respecting patents and rewarding inventors aren’t what the patent system is all about.
In short, the real complaint here is not that patents are too easy to obtain and enforce. Rather, it is that those who step on the rights of others resent it when their victims are able to fight back.
The U.S. patent system, which vests patent rights initially in individuals rather than corporations, is often the only thing that enables the true innovators in our society to have a fighting chance against large and powerful interests. Indeed, securing, for inventors, “the exclusive right to their…discoveries” is expressly stated in the U.S. Constitution. I look, therefore, with skepticism toward those who argue that protecting such innovators isn’t the “proper” role of the patent system.