The Patent System Does Not Scale

For the past five years, one of the points we’ve raised repeatedly in discussing the problems with the patent system is the simple fact that patent examiners don’t scale. The system we have today where every invention needs to be reviewed and approved by examiners at the Patent Office is inherently unsustainable given the general pace of innovation, which increases rapidly. And for a patent office to actually handle that kind of thing, it would need to keep increasing its staffing levels, while hiring the absolute top of the top. That’s simply impossible. Honestly, the very idea that you would have a group of people “certifying” every invention is pretty absurd when you think about it — and it’s a point we’ve brought up a few more times over the years, because it’s important, and doesn’t get much attention.

So, it’s great to see others are starting to make this point as well. Red Monk analyst Stephen O’Grady has a great post explaining that it’s because of that scalability issue, that he’s against software patents (he limits it to software given that being his own experience area):


The reason I am against software patents is, by contrast, very simple. It’s not rooted in philosophy, it doesn’t involve theories of good or evil; it’s not even about debating what is likely to spur more or less innovation.

I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.

In addition to questions of volume are issues of expertise; for some of the proposed inventions, there may only be a handful of people in the world qualified to actually make a judgment on whether a development is sufficiently innovative so as to justify a patent. None of those people, presumably, will be employed by the patent office. Nor are the incentives for fact witnesses remotely sufficient. Nor will two developers always come to the same conclusions as to the degree to which a given invention is unique….

If we acknowledge that this is the case, which I believe one must if the available evidence is considered, then it is no longer possible — whatever your philosophical viewpoint — to be in favor of software patents.

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