The Futurist: The End Of The Line For Obvious Patents

There’s an old episode of The Simpsons where the designers of Barbie stand-in Malibu Stacy are gathered in their smoky room trying to come up with a killer app to take on a new competitor on the block. Their idea: stick a hat on the old doll.

The ever-wise Lisa, who sees through such marketing shenanigans, says something along the lines of: “It’s still the same old doll, they just stuck a hat on it.”

To which Malibu Stacy aficionado Smithers enthusiastically replies: “But it’s got a hat!”, before grabbing as many off the store shelves as his four fingers can carry.

Fast forward to a few days ago when the Supreme Court ruled unanimously (that’s 9-0, for those keeping count) that it takes more than simply tacking on a new hat to score a patent on an innovation.

You see, for years, the tech industry’s dirty little secret has been that the single most profitable sector is not the sales of MP3 players or video games, but patent squatting. It’s basically a Get Rich Quick Scheme: Come up with an idea that is certain to come into play down the line, scoop up a patent, and threaten to put any company whose natural course of innovation intersects with your patent out of business unless they throw down hundreds of millions of dollars.

Such schemes nearly put Research In Motion (and your beloved BlackBerry) out of commission for good, and have made gazillionaires out of some of the tech industry’s sleaziest slime.

Thankfully, these days may finally be at an end. And while lazy millionaires might be growling, innovation will surely be howling. And, in the end, it might even signal a sign of things to come for those other super-stubborn innovation-haters: copyright purists such as the MPAA and RIAA.

The Supreme Court ruling, KSR International Co. v. Teleflex Inc essentially ruled that “obvious” patents—those incremental or logical ideas that are almost certain to pop up in the natural course of innovation, can’t be hoarded.

As chief swinger justice Anthony Kennedy put it in the majority decision: “The results of ordinary innovation are not the subject of exclusive rights under the patent laws… Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress.”

And about time too.

Patents were designed to basically give the innovator of an idea first dibs at pulling a profit from it. If somebody comes up with a brand new idea with absolutely no precedent, this is great. Why shouldn’t a visionary be able to pull in a few extra bucks? It might even fund other great inventions to come from such a legendary mind. And without patent protection, some great ideas might go unexplored because smaller entities would be terrified that bigger guys would simply steal their brainchild and muscle them out of the market.

Unfortunately, this system has been perverted and abused to the point that, rather than helping spur innovation, it usually does far more to hurt it.

When Congress passed the Patent Act in 1790, people could actually claim that their ideas were wholly their own. After all, these are the days of Ben Franklin, and not too far removed from Thomas Edison.

And, believe it or not, the idea of a patent (and copyright too) is written into our very Constitution. Article 1, Section 8, Clause 8 says: “The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

But today, especially in the technology sphere, nearly every patent falls into one of two categories (and I’m not even talking about the idea of patenting genes): 1) an incredibly incremental advance on somebody else’s existing idea (ie… sticking a hat on a Malibu Stacy doll, or simply porting an existing computer application to the Internet); or 2) Ideas that the patent-holder has no intention of ever developing, and simply wishes to milk for licensing fees.

And that, my friend, is why the Supreme Court ruling is long, long, long overdue. But it is not nearly enough.

Patents are not the only realm in which incremental advances are squatted for money at the expense of innovation. Take our very culture—the art, music, and movies we love.

The arts, like technology, is a series of incremental advances. A single painting is a riot of thousands of years of art history. Any given rock ‘n’ roll song has its roots in anonymous blues musicians who never saw a penny. Still, if you want to make any use of a riff that Keith Richards happened to use on Exile On Main Street, you better be prepared to pay up big.

If the Supreme Court can realize that most patented devices are the sum of their history, they should realize the same thing applies to the arts, and the ridiculous copyright laws, which do little to benefit artists, and tons to keep great ideas from ever seeing the light of day, are just as harmful to our culture as the idea of a government official losing his BlackBerry service because of a stupid patent dispute.

And, if you ask me, the recent ruling might even serve as precedent for a nice legal challenge to some of our more ridiculous copyright laws. If there ever was a time to call up your local EFF office, this is it.

Seth Porges writes on future technology and its role in personal electronics for his column, The Futurist. It appears every Thursday and an archive of past columns is available here.