Patent litigation is becoming an expensive hurdle for startups, and people outside the startup community are taking note. “It’s not clear that we really need patents in most industries” Judge Richard Posner told Reuters in an interview July 5 following his decision to end a patent suit between Apple and Google’s Motorola Mobility unit. The jurist and professor characterized the proliferation of patents in the technology industry and other high innovation markets as “a problem.”
Posner, a judge on the 7th U.S. Circuit Court of Appeals and professor at the University of Chicago, is a prolific author on law and economics, including the book The Economic Structure of Intellectual Property Law.
His comments follow a recent Boston University study that estimated companies were subjected to $29 billion in direct costs from 2011 patent infringement claims filed by “non-practicing entities” -- companies that operate by collecting fees on patent licenses as opposed to making products. While large companies pay more of the overall settlement and legal costs, the expenses make up a greater share of smaller companies’ revenue, according to the estimates.
Lawsuits brought by entites like Lodsys, a company that has sued app developers for the use of in-app purchases and other fundamental technologies, demonstrate the vulnerability of startups to the high costs of patent litigation and settlement.
A June 25 article by Bloomberg’s Susan Decker highlighted the study co-author James Bessen’s impression of the effect of litigation on entreprenuers and innovation:
“I was surprised at the magnitude and how much of it is really hitting small companies,” said Bessen. “It’s having a bigger effect on innovation than we had thought.”
Startups need a patent system that fuels innovation and incentivizes invention. Money seeped away by lawsuits robs young, dynamic firms of the opportunity to create jobs, enhance their products, and reach new customers. Reforms in the America Invents Act, signed into law in September 2011, didn’t go far enough to protect entrepreneurs. We need new, well-considered legislation to address predatory lawsuits and the billions observed by researchers to be lost to settlements and legal fees.
