HBR on the Wrong Patent Reform
The Harvard Business Review has a curious article this week by Paul R. Michel: Big Tech Has a Patent Violation Problem. The thrust of it is that we should not reform patent law to make it easier to invalidate patents because:
"If they succeed in weakening America’s intellectual property system, it could be devastating for thousands of small, innovative startups — with disastrous consequences for the economy as a whole."
Sounds bad, and attacking big tech is a great way to make you look like a populist. But as a small, innovative startup founder and worker I know that this is exactly the wrong way round. Google etc can easily afford to fend off patent litigation and deal with the consequences when a lawsuit occasionally breaks the wrong way. A fine after all is just a price. It's the startups that can't afford to fight off an infringement lawsuit, or pay to file a patent for every other line of code on the off chance that it could become a weapon one day.
So who is Paul R. Michel? HBR says:
"Paul R. Michel (Ret.) served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010."
But fails to disclose that he's currently listed as a member of the Intellectual Property Owners Education Foundation and:
"Judge Michel also consults for law firms and their clients in intellectual property litigations, conducting moot courts, mock trials, case evaluations, editing briefs, advising on strategy and providing mediation and arbitration services."
Which doesn't mean that he shouldn't express his opinion in HBR but does color that opinion a little in my view. If nothing else the current system is an all you can eat buffet for IP lawyers.
HBR: please feel free to run this as a counter-argument, the best way to fix the patent system is to stop examining them altogether as I proposed nearly twelve years ago.
(Related: How to fix software patents; Carr is Wrong: Costolo is Wrong: Wikipedia’s SOPA Blackout is a Great Idea; You won't believe this one crazy trick that would fix the broken patent system)
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