Poor, Poor Patent-Happy Me

Ex-Microsoft CTO Nathan Myrhvold has a mischievous OpEd on patents in today’s Wall Street Journal. He is arguing that the current Ebay/MercExchange tussle is wrongheaded, at least insofar as the IT community is supporting Ebay’s efforts to curtail some of the more automatic powers (like injunctive relief) accorded them by the Federal Circuit.

Why wrongheaded? Because, he argues, weakening patents is bad in an increasingly tech-centric economy. (It’s also bad for for Nathan’s business at Intellectual Ventures,. which should not go unnoticed.)

He’s absolutely right, but he’s also absolutely beside the point. None of the amicus briefs filed in support of Ebay argue for a weakening of the patent system. Matter of fact, they all go way out of their way to emphasize the importance of patenting in technology. The trouble is that the patenting system is running more than a little amok, with nonsense patents and nonsense IP lawyers growing side-by-side, and the IT community is the group most affected by the problem.

All that most people are looking for is some protection from an over-liberal patent system that is according people unnecessarily broad property rights in short-lived markets, like the ones for IT. An auto-injunction might not be so onerous when you have many years of patent-protected product sales ahead of you in biotech, but it s very big deal in IT when entire markets appear, burgeon, and disappear in four or five years.