We've reached a tipping point in grappling with our patent system. It's
a system that now deals with a world in which ideas, numbers on a
screen, slivers of silicon, or microscopic matter, can be more valuable
than a factory, farm, or oil well.
In fact, ideas have become a competitive advantage, a currency of their
own. U.S. intellectual property is worth $5-5.5 trillion, more than the
gross domestic product of any other country, according to American
Enterprise Institute economist Kevin Hassett and Clinton administration
economist Robert Shapiro.
Given the stakes, it should be no surprise that in the last 18 months
the U.S. Supreme Court has accepted more patent cases for review than in
recent memory. Patent legislation is on the congressional agenda, too,
with reforms being contemplated that could be the most sweeping in 50
years.
Why all the interest? Simple: Courts are clogged with patent
infringement disputes of questionable merit, and untold millions are
being spent on litigating and settling those cases in and out of court.
The threat of litigation is frightening people away from participating
in our innovation-based economy.
The impact of patent litigation is creeping closer to products and
services near and dear to our hearts and wallets. For instance, if
Research In Motion hadn't settled a lawsuit, a threatened shutdown of
its BlackBerry text and phone service might have slowed commerce
noticeably. And if Apple hadn't settled a suit over its iPods, there
might have been a lot of grumpy people suffering symptoms of music
withdrawal.
Of course, there are legitimate patent infringement claims. Patents are
one way that individuals and enterprises are encouraged to invest in
research and development. But with all the specious attacks, it's
increasingly difficult to separate the good, the bad, and the ugly of
patent litigation. What's more, due to the huge caseload of complex
patent applications, it can now take three to five years for a patent to
be approved.
That's why last year International Business Machines Corp. hosted a
virtual conversation on the Web, in which 50 of the finest minds in
industry, academia, government, technology and economics mulled over the
patent crisis. This thoughtful, eight-week discussion showed that there
was no panacea, but there are many actions that, collectively, can start
to make a difference.
One of the many intriguing suggestions revolved around the notion of
personal responsibility for behavior in acquiring patents-that private
industry can do more than just wait for the Patent and Trademark Office
(PTO) to improve the patent application process, for the courts to rule,
or for Congress to legislate.
I believe it's time for a commitment above and beyond the PTO's Code of
Professional Responsibility, which sets out only minimums of ethical
behavior for those practicing before the PTO.
The rationale: As more companies involved in the creation, management,
and sale of intellectual property take the pledge for a code of conduct,
there will be calls for others to "certify" that they are behaving with
integrity in their acquisition and handling of patents (a kind of
self-service version of the Underwriters Laboratories and Good
Housekeeping seals).
It's a little like holding the door open for someone, helping an
athletic competitor in distress, or being extra courteous while driving.
Goodwill begets goodwill.
The experts who discussed this issue in cyberspace concluded that in the
intellectual property marketplace, good behavior frequently comes down
to submitting "quality" patent applications. Among other things, that
means due diligence to ensure that no one else has already patented your
idea, and that your idea is not "obvious."
IBM will help the PTO in this regard, in pioneering a pilot program to
begin this spring. Some of our engineers will review patent
applications, and bring applicable prior art with explanatory comments
to the attention of patent examiners. IBM will also allow the public to
review and comment on many of our own patent applications. This level of
review will help PTO examiners complete their work more effectively and
expeditiously.
In addition, IBM, members of the open source community, and the PTO have
been collaborating to improve the quality of patents-especially software
patents-by making it easier for patent examiners and others to access
electronically published source code and its related documentation. The
source code and documentation are potential sources of prior art that
can be used during the examination process. The project is known as the
"Open Source as Prior Art."
As the recipient of the most U.S. patents for each of the past 14 years,
IBM has the depth and skill to volunteer our efforts. But many others
do, too, and should similarly offer their expertise.
When it comes to intellectual property, notions of "quality" are
intertwined with transparency. This means that it should be clear who
owns a patent application or patent. That may seem like a no-brainer,
but some applicants and patentees intentionally conceal their ownership,
or are vague about the scope of their patents, making it impossible for
others to determine whether they might infringe. What if homeowners
concealed their ownership records in the hopes of suing a trespasser?
Not very neighborly.
Finally, quality patents should be limited to those with technical
merit. To that end, IBM is reducing the number of patent applications it
files that pertain to business methods, and will focus instead on
inventions underpinned by compelling technical content. We encourage
others to do the same.
The fact is that the intellectual property community can do better; it
can take more responsibility for its actions. After all, the PTO doesn't
submit applications of poor quality or employ questionable intellectual
property practice-patent applicants and patent holders do. And neither
Congress nor the judiciary can legislate or adjudicate innovation and
ethics.
That starts with you and me.
David Kappos is IBM's vice president and assistant general
counsel-intellectual property law.
