The patentpocalypse is here. Or, to be more accurate, it’s (mostly) in the US.
Take a look at this great little graphic from the WSJ Law blog:
People often forget that patents by their nature are limited to individual jurisdictions. A US patent has no force in the UK, for example, and although companies routinely file patent applications covering the same invention in multiple jurisdictions, because those jurisdictions will all have different processes and rules as to patentability, there is no guarantee that the patent will be issued in all jurisdictions.
There is no European patent as such, but the European patent office administers a process designed to streamline application throughout its relevant European jurisdictions.< /p> It has, historically, been more difficult for software-related patents to be registered in Europe than in the U.S. (but by no means impossible). There have been recent changes on both sides of the Atlantic which mean that this generalisation may no longer hold true. But let’s assume for the time being that patenting software remains easier in the US than Europe.
So, if there is much more patent encumbrance in the US than in Europe, one outcome might be that in Europe we have access to technology which is unavailable in the US. When the Nexus one was announced, there was outcry from the US over rumours that the US version would not have multi-touch (for patent reasons) whereas the Euro version would. (The functionality was later made available as part of a firmware update).
So maybe there’s a real danger that the patent system might create a patent ghetto in which the US fails to get the shiny toys the rest of the world does.
From a US perspective, this might look unfair. To play devil’s advocate, it would claim that its patent system stimulates innovation, which is then hijacked by European companies without payment.
The alternative view is that insisting that other countries respect your intellectual property (i.e. enforce your state granted monopolies in the own territories) when the balance is clearly in the insisting nation’s favour smacks of imperialism. (“Influenced greatly by its early status as a net importer of copyrighted materials, the United States resisted joining the Berne Convention for over a century
Copyright is much more enforceable internationally than patent, as a consequence of treaties like the Berne Convention.
Florian MÃ¼ller has this useful initial analysis of the international position on some of the most prominent cases.
So will the result of this patent frenzy be limited to the US, with the rest of the world being able to look on this as a purely domestic matter? Possibly not. Litigation is starting to extend outside US border.
A point to consider in this mix, as pointed out by fellow blogger Glyn Moody, is that Chinese companies, contrary to their stereotype as imitators and not innovators (assuming you subscribe to the view that patents filings are a reliable indication of innovation, which, incidentally, I don’t), are filing significant a number of patents internationally. If their filings start to eclipse those of US companies, the US may start to be less keen on international patent harmonisation.
It’s too early to say what the outcome of the patentpocalypse will be. It may result in a number of contested patents being declared invalid. It may result in fear about using potentially affected software, much of which is open source. Ideally, it will result in governments taking a long hard think about what the patent system is for, and whether it’s fit for purpose.