We've reached a tipping point in grappling with our patent system. It'sa system that now deals with a world in which ideas, numbers on ascreen, slivers of silicon, or microscopic matter, can be more valuablethan a factory, farm, or oil well.In fact, ideas have become a competitive advantage, a currency of theirown. U.S. intellectual property is worth $5-5.5 trillion, more than thegross domestic product of any other country, according to AmericanEnterprise Institute economist Kevin Hassett and Clinton administrationeconomist Robert Shapiro.
Given the stakes, it should be no surprise that in the last 18 monthsthe U.S. Supreme Court has accepted more patent cases for review than inrecent memory. Patent legislation is on the congressional agenda, too,with reforms being contemplated that could be the most sweeping in 50years.
Why all the interest? Simple: Courts are clogged with patentinfringement disputes of questionable merit, and untold millions arebeing spent on litigating and settling those cases in and out of court.The threat of litigation is frightening people away from participatingin our innovation-based economy.
The impact of patent litigation is creeping closer to products andservices near and dear to our hearts and wallets. For instance, ifResearch In Motion hadn't settled a lawsuit, a threatened shutdown ofits BlackBerry text and phone service might have slowed commercenoticeably. And if Apple hadn't settled a suit over its iPods, theremight have been a lot of grumpy people suffering symptoms of musicwithdrawal.
Of course, there are legitimate patent infringement claims. Patents areone way that individuals and enterprises are encouraged to invest inresearch and development. But with all the specious attacks, it'sincreasingly difficult to separate the good, the bad, and the ugly ofpatent litigation. What's more, due to the huge caseload of complexpatent applications, it can now take three to five years for a patent tobe approved.
That's why last year International Business Machines Corp. hosted avirtual conversation on the Web, in which 50 of the finest minds inindustry, academia, government, technology and economics mulled over thepatent crisis. This thoughtful, eight-week discussion showed that therewas no panacea, but there are many actions that, collectively, can startto make a difference.
One of the many intriguing suggestions revolved around the notion ofpersonal responsibility for behavior in acquiring patents-that privateindustry 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 ofProfessional Responsibility, which sets out only minimums of ethicalbehavior 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 withintegrity in their acquisition and handling of patents (a kind ofself-service version of the Underwriters Laboratories and GoodHousekeeping seals).
It's a little like holding the door open for someone, helping anathletic competitor in distress, or being extra courteous while driving.Goodwill begets goodwill.
The experts who discussed this issue in cyberspace concluded that in theintellectual property marketplace, good behavior frequently comes downto submitting "quality" patent applications. Among other things, thatmeans due diligence to ensure that no one else has already patented youridea, and that your idea is not "obvious."
IBM will help the PTO in this regard, in pioneering a pilot program tobegin this spring. Some of our engineers will review patentapplications, and bring applicable prior art with explanatory commentsto the attention of patent examiners. IBM will also allow the public toreview and comment on many of our own patent applications. This level ofreview will help PTO examiners complete their work more effectively andexpeditiously.
In addition, IBM, members of the open source community, and the PTO havebeen collaborating to improve the quality of patents-especially softwarepatents-by making it easier for patent examiners and others to accesselectronically published source code and its related documentation. Thesource code and documentation are potential sources of prior art thatcan 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 othersdo, too, and should similarly offer their expertise.
When it comes to intellectual property, notions of "quality" areintertwined with transparency. This means that it should be clear whoowns 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 forothers to determine whether they might infringe. What if homeownersconcealed their ownership records in the hopes of suing a trespasser?Not very neighborly.
Finally, quality patents should be limited to those with technicalmerit. To that end, IBM is reducing the number of patent applications itfiles that pertain to business methods, and will focus instead oninventions underpinned by compelling technical content. We encourageothers to do the same.
The fact is that the intellectual property community can do better; itcan take more responsibility for its actions. After all, the PTO doesn'tsubmit applications of poor quality or employ questionable intellectualproperty practice-patent applicants and patent holders do. And neitherCongress nor the judiciary can legislate or adjudicate innovation andethics.
That starts with you and me.
David Kappos is IBM's vice president and assistant generalcounsel-intellectual property law.
