Regarding patents

There's a lot of back and forth going on in the debate about patents -- and by conflation, trademarks and copyrights -- these days. Everyone has an opinion, pro or con, informed or emotional, engaged or dismissive. And that's good, because like it or not, the current patent debate matters.

It's easy to think that patents are something that should only concern the mega-companies and the lawyers, the rich and the litigious. But that's not the case at all. Today's abstract patent case is tomorrow's loss of a gadget or an app. Already Apple has a temporary injunction that prevents Samsung from resupplying Galaxy Tab 10.1's in most of Europe. If it's not overturned soon, a consumer walking into the store in Germany may not be able to buy the device they want to buy. Likewise, Lodsys' lawsuits against developers has caused some to consider removing their apps from the US market. That means a consumer going to the App Store might not be able to buy the software they want to buy.

Patents, and the ongoing lawsuits surrounding them, matter to consumers not just in the abstract sense that we should all take an active roll in shaping the societies in which we live, but in the real sense that that they directly relate to what we can and can't buy.

And we don't have to be experts, versed in every facet of patent law to understand that, or to be righteously indignant about the current state of patents, any more than we need to be a physicist to worry about nuclear proliferation or social scientist to worry about civil rights. Its impossible for everyone to understand everything about every issue. It's impossible for those charged with making and enforcing our laws to understand everything about every issue.

But we understand something. We see crazy patent after crazy patent granted years after the ideas have become public, ignoring prior art, ignoring obviousness, and we see the gadgets and apps we want distracted and derailed by crazy lawsuit after crazy lawsuit, and we -- the non-patent-law-educated-public -- understand that something is broken.

"Perception is reality" is a cliché for a reason -- public perception certainly can sway and shape reality, and the court of public opinion can sometimes be as influential as the court of law. Right now, whether you agree with the current patent system or not, there seems to be a general public perception, at least among technology enthusiasts, that the system isn't really serving the public interest. Ideas seem to be rushed out simply to be patented and bought, sold, and licensed as commodities. The USPTO seems to have almost abdicated its role in determining the validity of patents and simply grants almost all of them, preferring to let companies and individuals determine validity through costly, time consuming, and disruptive litigation. And some companies seem to be willfully infringing on patents just because they think they're beyond the law. To us, the uninvolved but ultimately affected technology enthusiasts, it absolutely seems broken.

Whether there's a way to fix it or not isn't the point. Whether companies should be amassing giant, nuclear stockpiles of patents to deter lawsuits, whether non-practicing entires (often trolls) should be allowed to sue independent developers, whether the USPTO should grant patents with so much prior art my grandmother would find them obviously flawed, whether one giant company should be able to misappropriate the work of another, whether you even care about patents isn't the point and isn't important. The discussion is the point. The discussion is important. The discussion matters.

The discussion matters to the companies that make our gadgets, to the developers that make our apps, and to us, the consumers, who ultimately get those gadgets and apps -- or not.

This is and issue that will shape and define the industry we work in or simply the technology we love, not in the abstract but in reality. And this discussion absolutely matters.

Recommended reading: [Nilay Patel, Marco Arment, Mark Cuban]