Commentary: Are too many ag patents being granted?

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A New York Times article made me take notice of how all the legal fighting about patent infringement is affecting high-tech industries, specifically the smartphone and software industry. But I also started thinking about the crop genetics cases currently in the courts and wondering when patent infringement cases related to precision agriculture technology might become much more common place.

The New York Times writers noted that “federal judges, economists, policy makers and technology executives” say the patent system is “so flawed that it often stymies innovation.”

“In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years—an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings,” the authors of the newspaper article, Charles Duhigg and Steve Lohr, wrote.

The threat of litigation has some small companies backing off attempting to find innovative technology and new answers because U.S. court litigation would drain the company dry if a big gorilla company challenged them. Some companies back off real early to avoid a challenge. Many persons knowledgeable of patent rights suggest that standards for granting patents are too loose in this day of digital products and intangible creations and system concepts rather than mechanical products.

A vague concept is turned into a patent filing just in case someone might figure out how to use a concept in actual practice or product development, even though the company filing the patent might deep six the whole idea.     

The New York Times writers determined that the biggies of the digital world have filed an outrageous number of patent applications since 2000, many of them to allow the big companies to challenge other companies in court. The writers quoted a source as reporting patent applications, computer-related and otherwise, filed at the U.S. patent office in 2011 totaled 540,000, which represents an increase of more than 50 percent during the last decade.

Reported examples of company filings and patents received include Google, 2,700 patents since 2000; Microsoft, 21,000 in that same period; and Apple, 4,100 patents since 2000.

It appears to me that the patents, whether they are in genetics or digital agriculture, will lead to more and more emphasis on court fighting instead of investing in agricultural research and development. Budgets are set based on sales and profit and split according to the squeaky wheel, and it might be court challenges that companies decide protects their future income instead of R & D finding new solutions to old questions. 

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Texas  |  October, 09, 2012 at 10:04 AM

Patent law & lawsuits are just ridiculous today. When Google bought Motorola Mobility, I thought it might lead to some interesting new products. However, the real reason they bought Motorola was so that Apple wouldn't put them next on the shakedown list after Samsung.

Christopher Lynt    
Washington, DC  |  October, 09, 2012 at 10:17 AM

I understand your concerns, but they are nothing new - I have heard similar complaints many time since I first got into the patent system in 1985. There is something you are missing since you didn't seem to mention it. Patents can and do also have the effect of spurring innovation. Perhaps more often than not? If someone has a patent and you want to enter the market, you have to design around that patent, i.e., come up with a better idea and product - innovate. Patents are of limited duration, so the monopoly they grant will end one day. On the other hand, the term of the patent may outlast the life-cycle of the technology involved. The drafters of the US Constitution saw fit to include patent protection, leaving implementation up to Congress, and enforcement in the Courts. They recognized that with no patent protection, few companies would invest their time and money in innovation knowing that a competitor could 'steal' their ideas with impunity. How would they recoup their R&D investments? Finding the right balance is difficult. Imposing a cap on damages might limit some of the litigation, but it could also deny patent owners just compensation and encourage infringers. A more limited patent term could deny patent owners a chance to recoup their investments. Over the history of the US Patent system it has been tweaked many times. What changes would you suggest to deal with the perceived problem, and what will the consequences of those changes be? Commentary is one thing, but finding the answer is quite another.

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