Patents are commonly described as intellectual property, but this aspirational term obscures important differences between patents, trademarks, copyright, trade secrets and other property-like interests. While patents can be bought and sold like houses, they differ from other forms of “property” in most respects. Indeed, patents work very differently in different industrial and commercial contexts, despite patent law being written as if one size fits all. While the patent system may work relatively transparently and reasonably well in the pharmaceutical sector, it is hindering rather than supporting innovation in the information technology and software sectors. Patents may be appropriate grants for protecting the investment behind a single drug, but they too readily become outsized, dangerous weapons in sectors where products consist of tens of thousands of patentable functions. Large portfolios combined with a 20-year patent term favor incumbents, encourage the milking of old technology and disadvantage innovative newcomers, who begin with few if any patents.
