Patent Madness demands shorter patents

Courts seem to take a sensible approach with respect to ideas used in literary works. Dan Brown, author of the bestselling novel "The Da Vinci Code" which is the subject of a summer movie starring Tom Hanks, successfully defended himself recently against claims that he stole ideas from "The Holy Blood and the Holy Grail" by Michael Baigent and Richard Leigh. Copyright does not cover ideas, and thus a plaintiff cannot claim infringement even if the defendant lifted ideas wholesale from their work. Twenty years is madness, and clearly not the intent of patent law. From a copyright standpoint, what matters is the implementation, not the idea.

Unfortunately, such good sense gets tangled beyond recognition in the patent world. Ideas are considered protected property from a patent standpoint. The motivation for such protections is that it creates an incentive for people to spend the big bucks to discover new things which benefit humanity, such as a cure for AIDS or a drug that stops the spread of malaria.

That seems reasonable, and though some question whether such incentives are really necessary, the consensus is currently that patents do serve a purpose. The consensus gets fuzzier, however, as patents are increasingly used to build monopoly walls around ideas that are so simple that they serve more as roadblocks than incentives to innovate.

Business process patents are the most egregious example. Amazon has a patent on its "one-click" purchasing process that, at 20 years, is almost an eternity from a software standpoint. Add to that list Netflix patents "on the concept of the automatic queue, which customers add to from the company's library and then receive movies in a customizable order of preference," or covers the method that allows Netflix subscribers to "keep the DVDs for an unlimited amount of time, and "to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue--of DVDs to be rented."

When I read about this patent, I started to think of patents that would be in a similar style to the ones held by Netflix.  For instance, can I have a patent on a promotional campaign that offers the tenth cake purchased for free?  Would the concept of an all-you-can-eat buffet at the local Golden Corral be patentable?  What about a patent on a social networking site that makes it easy to add music links and images to you profile (MySpace)?  Doesn't this start to sound like an arbitrary grant of monopoly, and not an incentive to create new ideas?

Netflix is using these patents in a lawsuit it hopes will shut down competition from Blockbuster. What's particularly crazy about the suit, however, is that if these patents are upheld, Netflix would have a lock on the DVD rental by mail market for 20 years.

Personally, I question whether such "business model" (which is what they really are) patents are patentable. That, however, is an argument I'm not likely to win.

That's why I still think the best compromise from a patent standpont is much shorter patent protection periods. I proposed five years for software patents in a previous post, which to my mind is an upper limit. Business process patents, however, really shouldn't be longer than two years. That's enough time for a company with an innovative business model (as Netflix clearly has) to create a stable business before facing the full press of larger competitors (like Blockbuster) angling to enter their market.

Twenty years is madness, and clearly not the intent of patent law.