See the patent troll. He's not terribly clever, nor is he especially hard-working. That doesn't really matter much to him, though. He doesn't need to be clever - everyone else does. All he needs to do is wait - kick up his grubby little heels, belch out (or acqiore) an absurd, vague patent, and then threaten legal action against every major organization that he thinks might possibly violate it. Many of these businesses - wishing to avoid the long, arduous, and expensive process of defending their products in court - will simply agree to pay a licensing fee in order to make the troll go away.
Ugly little gremlin, isn't he?
By doing this, patent trolls - who almost never have any products of their own - can potentially pull in millions of dollars in profit.
Patents were originally designed as a shield. They were conceived as a means of protecting inventors, a method for allowing innovators to make a living from their work. The trolls have taken this once noble concept and warped it into a weapon. They've turned the shield into a legal hammer, with which they can bludgeon into submission anyone they think might give them a few dollars. Lodsys is one of the most insidious perpetrators, but it's hardly the only one.
Even larger organizations have started taking to patent trolling with a disturbing fervor, turning patent law into a tool with which they can destroy their competition. Who needs captalism when you have courts and laywers, right? I'm looking at you, Apple.
So where did we go so wrong? How did the once admirable pursuit of protecting inventors and innovators go so wrong? More importantly, how can we fix this? We've created a monster, and no one's quite sure what to do about it.
Ultimately, where patent law really started to fall apart - where most patent trolls stake their domain - is in software patents. According to a recent study by the Government Accountability Office, nearly 89% of the increase in copyright litigation can be attributed to software patents. That's a distressing statistic; one which most certainly must point to some glitch in the system.
We could easily point to how vague most software patents are - how patent offices seem to hand out low-quality patents on technology they clearly don't understand like candy - but that's really only part of the problem, one which points to a far more glaring issue. See...the simple fact is, software patents do not work. With the current iteration of the patent system, they never will.
"One reason software patents produce so much litigation," explains Tim Lee of The Washington Post, "is that software is used so widely...Another problem lies with the complexity and rapid development cycle of software, which makes patent research impractical."
Innovation shouldn't depend solely on the good-will of the courts.
The problem with patent law, then, seems not to stem from the system itself, but from its application to a technology it was never designed to address. It appears to be this line of thinking which led to New Zealand's recent decision to ban software patents as part of its reformed Patents Bill, legislation which was five years in the making. Under the new laws established by this bill, "a computer program is not an invention."
It remains to be seen, how the new legilsation will impact software developers already present within New Zealand, not to mention game developers. In that regard, unfortunately, all we can really do is wait and see. At the very least, it's probably going to prove quite unpopular with the trolls (meaning it can't be all that bad).
At this point, it's not necessarily clear whether or not New Zealand's decision to abolish software patents altogether is the right one. The only thing that's clear - the only thing that everyone can really agree on - is that the patent system is irreparably broken, and software patents are at the heart of it. It's anyone's guess how we're going to rectify this, but taking a close look at what New Zealand did is most definitely the first step.