Patently Absurd: How New Wireless Technologies Get Strangled By Patents
By Mike Masnick, Fri Apr 08 01:15:00 GMT 2005

Barely a week can go by without another announcement from some random company claiming it has patents that cover some core technology used in a new wireless standard. The industry needs to push for patent reform before it strangles itself in patent litigation.

The common refrain is stated by many tech companies: "the patent system promotes innovation." However, the evidence increasingly suggests that the opposite is true. Patents are strangling innovation, and very few seem willing to do anything about it. The idea behind patents makes a lot of sense. Instead of having everyone keep their innovative ideas as a trade secret, a patent gives the creator a limited monopoly over it so that others can eventually learn from it and build new innovation on top of it.

Unfortunately, that's rarely how the patent system is really used these days. Patents are only supposed to be awarded for ideas that are "non-obvious," but with an overworked patent system, that seems to have switched to "nearly any idea, as long as you're first to apply." Add to that two disturbing trends: patent hoarding shops who do nothing but buy up random patents and send out legal threats to companies to try to get license fees and standards bodies that figured some patented ideas should be allowed into standards with "reasonable and non-discriminatory" pricing, rather than as "royalty free."

That set off a mad dash by companies everywhere to make sure that, rather than the best technology, every standard included their patented technology. This has more or less stalled out numerous standards efforts, all because no one wants to give up without shoving their way into the expected tollbooth.

While a number of patent holders are already making patent claims on various aspects of WiMAX and Wi-Fi standards. yet another company is now making threatening noises about its patents. The company in question, Speedus, apparently has some patents on the idea behind MIMO technology that everyone believes is a core component of future wireless technologies. Last year, Speedus said it wasn't going to look to enforce the patents, because it realized the importance of not suffocating a market before it developed.

However, apparently Speedus believes that market is breathing just fine now, because it's gearing up to get license fees out of everyone it can track down. This doesn't promote innovation at all. All it's doing is passing money around among lawyers, and into the hands of a company that didn't actually do anything with the technology in question. The real problem, though, is that this isn't at all how the patent system was supposed to work. The companies that really are working on MIMO technology for use in things like next generation Wi-Fi didn't get the idea for MIMO from a random Speedus patent, but from recognizing that it was the most obvious way to speed up wireless transmissions. In other words, the core claim of a patent, it being "non-obvious" doesn't apply. No one has "stolen" the ideas in the patent in question. It's just that lots of people came up with similar ideas at the same time through the natural evolution of the technology.

So, in this case, what good does the patent system do? Of course, very few are pushing for reforms, because they're all playing the same games, hoping to get their own patents into other standards, or using their own patents as leverage against someone else's patents when it comes down to a one-on-one legal patent battle. In other words, patents are becoming less about actual innovation, and more about nuclear stockpiling to protect against someone else's patents. This is not only expensive and wasteful, but it's suffocating new technologies from being created and getting to market. If these technologies were really given a chance, the market would be big enough for everyone to profit without locking them up behind various patent licenses.