Patents and the Growing Anti-Commons

The patent wars have really been heating up.  For some time now Apple has been going around trying to get various Android devices off the market based on patent claims.  Now the shoe is on the other foot as a court in Germany has found in favor of Motorola Mobility against Apple based on a patent.  Of course Motorola Mobility is in the process of being acquired by Google so that its trove of patents can be used in the fight against Apple and others.  Apple is reaping what it has sowed.  And in the last few days it has become clear that Apple has been punching both above and below the belt.  Not only has Apple has sold or licensed several of its patents to a newly established troll but Apple has also been using patents to undermine open standards.

In the end all this patent litigation will accomplish absolutely nothing for the companies in question.  Yes, maybe it will delay a competitor here or there for a short period of time.  But in the end there are too many patents around already so it all becomes the equivalent of a slow moving trench war with all sides digging in.  In the process countless lawyers will become incredibly rich and innovation will suffer as collateral damage.  We are experiencing the tragedy of the anti-commons: instead of ideas combining freely to move us forward as a species we are fighting in court over their ownership.  Here too Apple has played a rather sad role by patenting a variety of things that had clearly been out there already thus effectively removing ideas from the commons where they can be combined freely with other ideas!

Given all that it is especially galling to see the Supreme court on its way to extending the reach of patents into yet another realm: medical diagnosis.  Apparently it could soon be a patent violation for a doctor to adjust the dosage of a drug based on measuring the level of a chemical in the patient’s blood.  Leaving aside that this seems like a fairly obvious idea, it is frightening to consider the consequences of patents extending beyond pharmaceuticals to simply applying medical knowledge.