经济学人下载:知识产权,发明之战

System failure
体系缺陷

Kent Walker, one of Google’s senior lawyers, grouses at being forced to spend a lot of money defending the company against frivolous lawsuits by rivals. Others counter that as computing goes mobile, it favours information-technology firms that have invested in research for years and that Google was naive—or idealistic—to broaden its IT business without having a stack of patents. There is a retort to that, too: that incumbents can use patents as barriers to entry, which is why America’s antitrust regulators are showing interest in them. In April the Department of Justice demanded changes to Novell’s patent sale to protect open-source software.

谷歌的一名高级律师肯特·沃克尔（Kent Walker)就抱怨说，公司不得不花大笔钱应对竞争对手杂七杂八的诉讼。有些人则辩解称，随着移动电话的计算机化，多年投入于研发的信息技术公司会备受宠爱，而谷歌太幼稚——或者说理想化，想在没有专利储备的情况下就扩展其IT业务。对此说法也有不同意见：监管者可利用专利作为市场准入的障碍——这就是为什么美国反垄断监管者对专利感兴趣的原因所在。四月，美司法部要求Novell公司改变出售专利，以保护开源软件。

Nowadays, innovations in IT usually rely on many small improvements involving numerous technologies, which means it is not always clear precisely which inventions a patent covers. The open secret is that everyone infringes everyone else’s patents in some way. This creates an incentive for firms to build up their patent portfolios to strengthen their position in negotiations, leading to what some liken to an arms race. The legal tussles usually end in cross-licensing deals, in which small sums of money change hands. This is considered preferable to a mutually destructive exchange of endless lawsuits.

时至今日，IT产业的创新大多依赖于众多技术的点滴改善，这就意味着通常不是很明确一项专利到底包含哪些发明。大家都不同程度侵犯彼此的专利，这已是心照不宣。这就无形中促使公司逐渐扩大专利组合，来增加谈判筹码，这就造成像是军备竞赛的结果。法律纠纷通常以交换使用专利权而告终，只有少量现金易手。人们普遍接受这要比彼此没完没了的诉讼，互相伤害好。

The patent battle has become more contentious than ever. One reason is the mobile phone has provided a new platform of computing that firms want to dominate. Also, such a backlog of applications built up at America’s patent office (now more than 1m, with a waiting time of around three years) that standards slipped. Dubious patents were granted, helped in part by court rulings that allowed patents to stand on some software and “business methods” that many thought no one could lay claim to. In Europe and Japan, where patentability standards are higher, this is less of a problem.

专利争夺战越来越有争议，前所未有。原因之一就是移动电话提供了计算新平台，而这是各公司竞相追逐的。还有，美国专利局的标准下降，此类等待注册的应用程序逐年增加（现在有超过1百万项要等待约三年时间）。有争议的专利获得通过，这部分得益于法庭允许某些软件及“商业方法”获得专利，而这些人们普遍认为没有人会申请专利。在专利标准较高的欧洲和日本，就没有此类问题。