[By Craig Wilson]

In contemporary commercial warfare, there’s only one guaranteed winner: the lawyers. The patents system exists ostensibly to encourage newcomers, protect their intellectual property and encourage innovation. But the reality is the big players are buying up every patent they can, discouraging innovation and creating new barriers to entry.

This take on the patent system was echoed by Ubuntu Linux’s Mark Shuttleworth in an interview with TechCentral last week. “[The patent system] is sold as a way of giving the little guy an opportunity to create something big … when in fact patents don’t really work that way at all,” he said.

“What they do very well is keep the big guys entrenched and the little guys out. For example, it’s very common in established industries for all of the majors to buy up or file as many patents as they can covering a particular area. They know and accept that the other majors are all in the same industry and essentially cross-license each other to keep the peace within that defined market. But they use that arsenal to stop new entrants coming in and disrupting the market.”

That’s almost the exact opposite of the way people think about the patent system, he said. “They think it’s supposed to catalyse disruption and innovation, but in reality it has the opposite effect.”

Android has certainly caused disruption in recent years. Largely written off at first, Google’s operating system is now the most popularly used on smartphones. Moreover, Google doesn’t demand license fees for it. Considering Android’s growing dominance, it’s little wonder Microsoft, Apple and even Oracle are attacking Google with patents.

Many have argued that Google’s proposed acquisition of Motorola Mobility was primarily about patents, with the access to its hardware portfolio just a cherry on top. Google hopes Motorola’s extensive patent portfolio will provide both insulation from and ammunition in the ongoing patent war.

One of the biggest problems with patent infringement lawsuits is that they take years to conclude, even if they run smoothly, and even longer if there are appeals and counter-appeals. By the time they’re concluded, technology has moved far further, invariably bringing its own patent battles in the process.

Patent battles also pit newcomers and start-ups against global giants, giants that are increasingly trying to swell their already bloated patent portfolios. Rather than spending money on research and development, newcomers have to sink their capital into legal battles, and even when they win one has to wonder if there is ever really a financial benefit once the legal costs have been met.

In his interview with TechCentral, Shuttleworth argued that the patents system was “originally designed to encourage disclosure”. Patents, he said, “were essentially a trade-off for disclosure of an idea that created a good for society in exchange for a short-term monopoly”.

“Two things have happened in modern times. Firstly, you can’t keep secrets anymore. These days, everything can be reverse engineered,” Shuttleworth said. “Secondly, the definitions of protection have been expanded, so it’s not good for society. You’re not really gaining disclosure you would have got anyway, and in the process you’re helping sustain cartel-type behaviours in just about every industry, but especially in technology.”

Patents have gone from being protective to exclusionary, and that is to everyone’s detriment. Patents are meant to drive innovation not stifle it. If left unchecked, it looks likely that a handful of companies will have their hands out expecting their cut from anything to do with mobile technology, and if that becomes a reality, everyone except the lawyers will lose.