Companies and individuals, in our capitalist society, get ahead and make their existences better (again, in the capitalist sense), through innovation. The government’s obligation to help the individual, and, especially now after the decision in Citizens United, the company, means that the government should assist those entities in their innovating. This is a conclusion derived from simple logic and a fairly well-accepted view on the purpose of government, but one which our government has unfortunately forgotten.
Perhaps that’s a bit mean. Out government has not forgotten its obligation to help us to innovate, it simply has no idea how to do so, at least in the realm of patent law.
Patents were started and continue to be issued in order to promote innovation in two ways: first, because it allows the holder of a patent to gain a unique monetary advantage; and second, because it encourages others to use the public information provided and to improve on existing designs. However, the law as it stands allows for the holder of the patent to seek damages from an “infringer” who has simply, by chance, created something that has already been patented.
This means that if I were to come up with a great idea off the top of my head tomorrow about how to best sell items online, say allowing people to type a list of all the things they want to buy and have my program auto-search the web to purchase them, I could be sued for creating and utilizing such a program if someone else had come up with the same thing and could prove they did so before me. There is no necessary exchange of information – the company does not even need to have released the application before I had my idea. The simple fact is that if a company gains a patent, they can sue anyone for “infringing” it, even if they never intended to do so.
But how does this apply to my original point about the government being clueless about how to help us innovate? The connection here is fear. Anything that I create may have already been patented, unbeknownst to me. That possibility opens up the path for a lawsuit and for my having to pay the holder of the patent. Unless I have some truly and utterly unique idea that I do not believe anyone else could ever conceive of, and unless that idea could make me enough money to justify the risk, it seems like it would be in my best interest to never invent anything. Any invention runs the risk of “infringing” on someone else’s patent, and because of this, innovation is stifled. If the government were to adjust its policy and require the holder of a patent to prove prior knowledge of their product or process on the part of the alleged “infringer” when filing a suit, this fear would be removed and individuals and companies would be in a better place to innovate. This would prevent both my concern above and horror stories such as the one laid out by Gary L. Reback eight years ago. Unfortunately, the law is the same now as it was then, at least in this aspect.
The reason Leroy is sad is that he just thought up a grand new method of transmitting data over the internet, but fears it may be already owned by Comcast. Either that or he’s depressed that he didn’t patent his wonderfully “non-obvious” idea for internet sales: