Shooting the Canaries

Mike Masnick makes a good point about “patent trolls”:

Rep. Lamar Smith… held hearings today to see if Congress could come up with a working definition of a patent troll. While it’s good to see Congress recognizing that patent hoarding can hold back innovation, defining just what a patent troll is doesn’t seem like it’s going to help. The issue isn’t whether or not anyone is a patent troll, but whether the patent system is being used to hold back innovation. Trying to define what a patent troll is will simply confuse the issue, and lead companies to focus on avoiding the specific definitions of a patent troll, while trying to accuse every one they get into a patent lawsuit with of meeting the regulatory definition of patent troll. A much more important issue would be to focus on making sure the patent system is actually encouraging innovation.

I suspect this reflects the distorted view you get when the legislative process is dominated by industry lobbyists. For the most part, big companies don’t mind over-broad patents so much. They have a lot of patents of their own, which they can use as barriers to entry against smaller competitors, while they sign cross-licensing agreements with other big companies to minimize litigation. The only problem comes when a small company dares to sue them. Then they’re pissed!

In a sense, patent trolls are canaries in the coal mine of our patent system. They’re a signal that certain parts of the patent system is becoming harmful to innovation. But instead of figuring out how to fix the patent system, Rep. Smith seems to think the solution is to shoot the canaries.

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