It's as simple as this: companies would rather sue over a patent or copyright claim than duke it out in the chancy world of open competition. Congress, in its eagerness to please its corporate masters, has helped facilitate the mess. The public, long disinterested in the complex and dry niceties of such things, is becoming aware that they have a stake in who owns what for how long. A very fine two-part article in the LA Times takes the matter on:

For decades, finicky children have been eating peanut butter and jelly sandwiches with the crust removed. From a legal point of view, however, the lunchbox staple was invented on a patio in Fargo, N.D., in 1995.

Incredible Uncrustables, a sandwich the two entrepreneurs mass-produced for Midwestern schools. It also began a long-running dispute over whether the U.S. Patent and Trademark Office went too far when it gave Geske and Kretchman the first patent on a mundane household sandwich.

"This doesn't mean your grandmother can't make you a peanut butter and jelly sandwich," said Ann Harlan, a lawyer for J.M. Smucker Co., which now owns Geske and Kretchman's company.

But it does mean that Smucker will try to prevent other companies from making them. For more than two years, Smucker has been arguing in court and the patent office that a crustless peanut butter and jelly sandwich made by Albie's Foods Inc. is violating its patent and must be taken off the market.

"They're misusing the patent system," said Albie's lawyer Kevin Heinl. "It's outrageous."

....Meanwhile, the system as a whole is breaking down. Patent applications are increasing in complexity and length, but the 3,500 examiners still are evaluated by how many they approve. The inevitable consequence, says one former examiner: "The path of least resistance is saying yes." Three-quarters of applications get approved.

Two former heads of the patent office have described the agency as sitting "on the edge of an abyss."

"Crisis is a strong word," the American Intellectual Property Law Assn. has noted in correspondence, "but we believe that it aptly describes the situation."

....Since patents tend to be complex, infringement can be determined only by a professional. That's one reason the number of intellectual property lawyers has quadrupled since 1985. During the same time, the number of court cases involving intellectual property has doubled.

Technology companies, in particular, spend massive amounts of time and money either suing over patents or being sued. Research in Motion Ltd., maker of the popular BlackBerry hand-held e-mail device, sued competitors for alleged patent violations, gaining licensing fees. Then the company itself was sued for infringement. A private holding company called NTP Inc. said Research in Motion was violating its patents on wireless e-mail.

Research in Motion lost the case, recording a $32-million charge for litigation and related expenses. NTP is seeking an injunction to prevent the company from selling BlackBerrys. Meanwhile, the patent office is reviewing whether it should have granted the NTP patents in the first place.

....For a long time, the scope of patents was sharply limited and easily understood. Ideas and natural phenomena were not patentable. Machines and industrial processes were — provided they were both new and useful.

page 1 | 2