Invention is Killing Innovation

I just stood there in disbelief.  A lab director was shutting down a promising cancer research project before my eyes, simply because someone had muddied the “intellectual property” landscape with dubious patents, patents the “inventor” never intended to use for any other purpose but to get licensing deals.  How many people in the future might have been saved by a therapy that will now never be developed?  I wonder.

The perpetrator here is not what you might think.  The dubious patent filer in this case was not a so-called patent troll, just a normal operating company – one that makes real products…though no products remotely related to the patents they filed.  (They have a practice of rewarding inventive employees who file lots of patents.)

Inventions are the nouns of innovation.  But if you intend to do nothing with your invention but frame it and stick it on a wall, then you have an Invention without an Intention – a noun without a verb.

Just today I saw this tragedy again.  A promising new company is at a stand-still as it wonders whether a patent filed years ago by someone who did nothing with it will result in their potential funders pulling the plug for fear of infringement or being slapped with exhorbitant licensing fees (or worse, legal fees fighting the dubious “inventor’s” claims).

A lawyer colleague tells me that she sees friends in her firm and others spending weekends just writing patents that come to their mind.  Some of these people are making $100k a month extorting money from startups who “invented” a similar process or method entirely separately but who actually intend to use it.

This has to stop.  This is not what Hamilton (no, it wasn’t Jefferson, who opposed all forms of monopoly, including patents) and the Framers had in mind when they wrote the patent and copyright clause into Article I of the US Constitution.

Fortunately there has been some progress.  I nearly wept with joy when the Bilski decision was handed down by the US Federal Circuit Court, striking into the ditch many so-called business and method patent claims.

But until we require that an inventor show that he is putting his invention to practical use before issuing him a patent, we will continue to stifle innovation for the sake of invention.

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