Thursday, 28 November 2013
What is common to all of them is that they enjoy the public limelight and that they are widespread in the mainline media and social media, i.e., they have acquired patent “celebrity” status. Against this backdrop, it seems to this Kat that the current patent narrative consists of four principal themes. The first is the “problem” of non-practising entities and so-called patent trolls. The second is the claimed “decline” in patent quality. The third is the aggregation and accumulation of large patent portfolios in the hands of a small number of multi-national entities. The fourth is the increasing refocusing of patents as a commercial asset rather than as an enforceable legal right.
But lurking in the shadows of these celebrity topics are substantial subjects that seldom seem to make it into the pantheon of the popular patent narrative, despite their arguable importance. One such topic was suggested in connection with a recent podcast that this Kat heard this week. In short, a serially successful entrepreneur was discussing his most recent social media venture, a platform for truly mass interactive television. He described the process of overcoming various technological challenges to develop the platform. He was then asked about the role of patents in protecting his platform. He was quick to answer—patents played no role. He acknowledged that patents might play some “defensive” role for large companies (perhaps alluding to the various mega-patent portfolios that have been acquired during the last several years). But for him, what mattered was getting the technology right. Was he worried that competitors might simply imitate his technology? Not at all, was his response, to develop it was too complex and time-consuming to pose a real threat of competition. For this entrepreneur, innovation was all about the cumulative know-how embodied in creating state-of-the-art technology; patents are perceived as having little or no relevance.
But the anecdotal comments described above suggest a quite different narrative, according to which SMEs (and start-ups) may eschew patent protection for the simple reason that it provides less benefit than simply protecting one’s technology as a form of know-how. Create a better platform, get it to market and develop a powerful brand, and not accumulating a patent portfolio, is the preferred road to success. If this be true, then the efforts and resources expended to bring patents to the SMEs may simply be misplaced. The more correct narrative should focus on how to enable the development of quality technology in the form know-how/trade secrets to be leveraged by effective marketing and branding rather to seek to impose the patent system on such companies. Inasmuch as encouraging start-up activity is a major priority in most developed countries, recasting the narrative in this way may be no less important for innovation and technological development than the patent themes mentioned above. No less important, indeed, but whether it will become part of the public narrative remains an open question.