In a nutshell, it’s gambling on a technology which is neither patent nor even patentable.
Patent protection is important for anyone creating a new or novel technology, whether it is an app that helps children learn, a new medical device that could save lives, a new car, a new appliance, etc. Because patent protection applies to patents, everyone who is involved in the development of the proposed product has to pay a legal and financial premium to secure the patent.
Patent protection is one thing, but there is little incentive for companies to create new or innovative technology if they won’t have to pay to get it protected. This is also the case for patents on new drugs, which are often created when a company is faced with the decision of whether to produce a costly drug, or spend money on a potentially less costly alternative.
By contrast with patents, betting on a technology that simply isn’t patentable doesn’t cost much but is nevertheless very lucrative for investors. Think of all the money that companies have spent developing software in recent days. They didn’t receive a Nobel Prize during development.
The risk investors pay when they bet against a technology they aren’t licensed to is that if they lose, they have to pay compensation. If the price goes up in the market for a potential technology that they’re not licensed to, they have to pay a higher, potentially higher, price to acquire that technology to make another investment.
The only reason patents haven’t been more freely given by U.S. courts (and other countries) to patent owners is that companies like Google, Microsoft, Twitter, Facebook and others refuse to pay for them and because the market value for these technologies is so high.
So what can be done?
The next best solution to the problem is for investors and companies to make these bets from the outset, without being forced to pay a premium to get protection. This does have some advantages — it allows a new and innovative technology to enter the marketplace at the lowest possible cost and encourages a wide range of new ideas.
Companies are already starting to make this bet, which has the effect of encouraging innovation and creating a broad range of new applications which are in some way related to the issue being covered by the patent; for example, Google is testing self-driving cars as a technology that has nothing to do with Google’s own patents.
This is also a smart strategy as the patent system is not set up to reward risk takers. Companies have to prove
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