IP litigation hurts America

The conference was more "shop talk" than I expected. Though it was designed to lure eager new bloodsuckers into the exponentially growing field of IP litigation, the shop talk was almost as effective as the meeting discussing IP would have been in any meaningful sense.

The lawyer with the most experience in the area, John Nathan, of course offered the most insight into IP litigation and the field's evolution. Previously, IP litigation was handled by "IP boutiques" that specialized solely in IP work, such as the major firm Nathan worked at for over three decades. But now, such litigation is largely in the arena of general firms. He cited the increasing "need for immense support structure" in patent litigation as one of the major reasons for this transition. In other words, IP litigation requires a tremendous amount of resources that only large firms can muster.

General firms have embraced IP "enthusiastically," said Mike Beck, one of the guest lawyers, indicating not only how important IP is, but also how it will only continue to become more so.

This growth probably stems from the fact that IP is no longer a means, but an end unto itself. With the development of the notion of intellectual property - the word property being key - patents and such became ends in and of themselves. IBM, Microsoft, Amazon and Apple are all patent whores, ever intent on increasing their portfolio, sometimes claiming (and winning) patents for the most basic and inane of all computer premises, not necessarily because they invented them - often they didn't - but just to have that patent in place. The list of dubious patents awarded to Microsoft and Amazon are too numerous to name, but Apple is probably the touchiest company about their patents, with a legal team ready to spring into action at the drop of a hat. In these cases, however, patents don't so much encourage innovation as they serve as a means to restrict competition.

Worse are companies who exist solely to develop "IP portfolios," usually consisting entirely of dubious patents of materials they played no role in developing. These companies then turn around and try to blackmail legitimate companies with litigation threats. I won't name any of them, because the last time I did I was inundated with e-mails from a certain CEO, who seems somewhat less than sane.

In any case, the concept of IP represents one of capitalism's ultimate victories: Ideas as commodities to be bought, sold and traded. Ideas have long been thought of as something private, but private property is purely capitalistic in origin. I would argue that this is different than IP as used by artists and writers, who ultimately profit from the creation of an end product, though I haven't the space to do so here.

Patents, copyrights and trademarks were designed to encourage innovation (which benefits the public); they are there to assure innovators that no one else will come along and reap the profits of their innovations. This is a good thing: Innovators do what they do best and create new and wonderful things because of the security offered by those legal protections - a means to an end.

What struck me the most was the fact that none of the lawyers speaking at the event seemed to have any concept of the meaning of what they were doing. They knew all about the practice of IP and its litigation, but seemed to have little grasp of the consequences of their actions. At least, they didn't seem bothered by those consequences. It's just another business trend to them, exemplified in one lawyer's statement noting that it was the obvious place for the legal profession to go, after the tobacco money "dried up" in the early '90s and the similar withering away of antitrust litigation.

Nothing good has come out of these patent wars. In fact, they may serve to discourage innovation, given the sweeping range of some IPs covering the most basic concepts. Patent wars effectively carved out a demilitarized zone that no one can go near, effectively granting corporations monopolies over ideas themselves. While nothing's going to change anytime soon, I'd like to quote Jon Stewart and just say, "Stop. You're hurting America."

Source: Washignton Square News