The broken US patent system is damaging innovation and needs to be fixed

Reading through the tech news sites this morning, I noticed yet another patent spat, this time between Samsung and Apple, who are each trying to claim the other has stolen their intellectual property and to block each others' imports into the US.

This is yet another example of large technology companies trying to beat each other up with patents of questionable value. One of Apple's patents is about the basic design of a touch screen phone, which rather seems like Ford trying to sue Volkswagen for selling a car with four wheels and an engine. In another development, a consortium of companies including Apple and Research in Motion (the people behind the Blackberry) has just agreed the purchase (to the tune of $4.5bn) of a portfolio of patents from the bankrupt Canadian telecoms giant Nortel.

The original idea of patents was to protect inventors and entrepreneurs, so that they were safe from having their ideas stolen by large companies. What we now have is the opposite. Small companies can struggle to innovate because some large company or patent troll (companies who buy up patents and then launch legal actions based on them, who don't actually make anything) will threaten them with a law suit which they'll struggle to fight. In the end we have out-of-court settlements in which the big boys pay each other money, and all that happens is that lawyers get rich. We end up with ridiculous situations like the fact that for every mobile sold which runs Google's Android system, a few dollars is paid to Microsoft, who have always been the antithesis of Android's open source roots and certainly haven't made any contribution to the core Linux operating system which it's built on. These patents often only apply in the US, but given the size of that market they have a global effect.

The USA seriously needs to address its patent system. I would suggest two measures. First, in order to enforce a patent, a company must have made and sold a product which used it within the last 5 years. This would get rid of the patent trolls, while protecting businesses who actually innovate and use their patents. Secondly, and this would be much harder to get past the big corporate lobbyists, companies over a given market capitalisation should not be able to enforce patents. This would mean patents protect small and growing businesses who actually need the protection, not large established players trying to cement their domination of a market.