Should the White House crack down on patent trolls, or on patents?

That patents boost innovation is received wisdom, but it might not be true.

The Obama administration has sung the tune that Silicon Valley wants to hear, and will be cracking down on patent trolling – even announcing the policy in the web-friendly format of animated gif:

Patent trolling is the colloquial name for a bundle of strategies used by companies technically known as "non-practicing entities", which own patents on technologies which they have not brought to market. The patents used are frequently broad claims, granted by patent clerks with a lack of knowledge of the area. Often they stem from the early days of the internet, and cover ideas which can be summed up as "use the internet to do something".

Once the NPE has got hold of the patent, usually through buying up the portfolio of an older company, they then start threatening smaller companies with lawsuits. Key to the plan is that few of these lawsuits actually come to pass – instead, the companies are bullied into paying "license fees" to avoid the suit. That's because the trolls could ill-afford to have too many cases going on at once, but also because once they head to court, they run the risk that their patent will be invalidated (or at least that it will be ruled to be much narrower than they've construed it).

The "non-practicing entity" part of the equation is most important because many industries exist in a tangled web of patent infringement and licensing. Apple probably infringes a bunch of Google's patents on something – just because Google holds so many patents – but the converse is also true. The two companies end up existing in a state of mutually assured destruction, which NPEs can bypass.

But the other reason why NPEs are the focus of the changes is that they're easy to vilify. They don't make useful products, they don't have public profiles, and many of them don't even have any real link to the person who filed the patent in the first. But they are merely a symptom, not a cause, of the problems of the patent system.

Overly-broad patents have been granted to practicing entities as well. Amazon managed to patent the idea of ordering an item with one click, and it took eight years and a whole lot of publicity for the US patent office to force them to amend it. And they aren't just granted in technology. Here's a patent for "the process and apparatus for refreshing bread products, particularly open face items such as sliced rolls, buns, muffins, and the like" by heating them. You may know it as a "toaster". The patent was granted in 1999 and only lapsed when the inventor stopped paying the renewal fees.

And while it's easy to vilify NPEs, they do have a reason for existing. Theoretically, patents encourage two things: invention, and disclosure. Because you can't patent something without fully describing what it is and how you do it, it ensures that creators reveal their inventions to the world, so that when the patent lapses, everyone else can copy it. In theory, NPEs encourage inventors who might not have the wherewithal to bring something to market to still disclose it; and then, with the simple payment of a license fee, others can build on it.

In practice, of course, this doesn't happen. The industries where patent trolling is most common have little need for this sort of disclosure, since they're ones where it's encouraged in other ways; biotech leans heavily on peer-review, and coding on open-source. And the sort of actually-insightful inventions which we want to be disclosed are useless for patent trolling, since by definition they won't be independently invented. Instead, patent trolls need patents which as many people will infringe as possible.

But if we're comparing theory to practice, we need to go further than just asking whether patent trolls are broken in practice. What about the entire system?

Patently problematic

Patents have been around for so long that it's often forgotten that, prima facie, they're a bad thing. A patent is a government-granted monopoly on the exploitation of an invention, limited for a short time period. The immediate effect of that is the same as with all monopolies: the monopolist gets the chance to limit the supply of the product in an effort to increase their profit margins.

So patents start off on the back foot, and must justify their existence somehow. That justification comes back to the theoretical advantages of patents encourage: invention, and disclosure. The idea is that the monopoly, and the increased money which the inventor accrues from it, encourages innovation. Without patents, it is claimed, inventors would not be able to make any money from their creations, and may just not bother.

Even that advantage is actually a post-hoc justification, though. In the early days of patents, before their commission was codified and organised, they were granted as a sort of reward to inventors. The economic concepts of incentives had not yet come about, and the best way to get a patent was to have a mate in parliament who could make the case that a state-granted monopoly was your just desert.

That system was the worst of both worlds. Since a patent wasn't guaranteed to an inventor, it could do little to encourage invention; but if it was granted after the fact, it would do a great deal to stymie growth in that sector in the future. Economists Michele Boldrin and David Levine, in their book Against Intellectual Monopoly (available online in its entirety, naturally), detail what happened to the steam industry in the years during and after James Watt patented his engine:

During the period of Watt’s patents the U.K. added about 750 horsepower of steam engines per year. In the thirty years following Watt’s patents, additional horsepower was added at a rate of more than 4,000 per year. Moreover, the fuel efficiency of steam engines changed little during the period of Watt’s patent; while between 1810 and 1835 it is estimated to have increased by a factor of five.

Patents do harm. The question is whether they do good as well, and enough good to outweigh the harm

As the system has progressed since then, the scope of what is patentable has increased dramatically. Whereas the patent system initially covered physical inventions only, it soon grew to encompass things like business methods, software innovations, and genetics. If patents encourage innovation, then we would expect a burst of invention shortly after they're expanded to a new area. That is not quite what Boldrin and Levine find.

They look at a number of examples, from US agriculture – which grew from a system where only "some mechanical and chemical inventions" could be patented to one where plants and biotech inventions could be – to the software industry. In every case, they find that the extension of patents to the industry had little effect, or even a negative effect, on productivity growth.

It's hard to measure the actual effect of patents. Partially that's because the typical measure for the level of innovation in society is the number of patents granted – which is obviously not suitable for an inward-looking examination of the system. But it's also because their existence is such received wisdom that we have to hunt hard to find examples where they aren't in effect. And many of those examples are new fields, where we'd expect a burst of innovation anyway.

Nonetheless, the balance of evidence isn't as clear cut as popular perception would have it. If the Obama White House really wants to help America's innovators, and free them from the tyranny of being sued for invention, it could consider ending patents entirely.

A young Albert Einstein. The physicist was a patent clerk as a young man. Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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Low fat, full fat: why the diet industry keeps changing its mind

A new report illustrates just how disillusioned the diet industry has become, at the expense of everyone else.

Another year, another wave of dietary fads. Most seem to surface in the summer, when new nutritional advice claims to provide the panacea to everyone’s health woes: “Eat clean get lean!” “The simple secret of intermittent fasting!” “The paleo way is the only way!” “Six weeks to a super you!”

However, despite the barrage of diet books, the expansion of nutrition research and the growth of education about healthy living, global obesity has more than doubled since 1980.

It may be that this is due to the conflicting information constantly issued from the diet industry. “Eat lots of protein – it’ll speed up your metabolism!” “Too much protein will damage your kidneys – reduce your protein intake!” “Superfoods are a vital source of antioxidants!” “Superfoods aren’t so super at all!” “Don’t snack it will make you pile on the pounds!” “You should snack – it’ll stop you from binge eating!” It’s no wonder people aren’t sure what to eat.

The UK launched its first dietary guidelines in 1994, which have since been continuously revised to form the guide now known as “The Eatwell Plate”. The dietary guidelines recommend plentiful carbohydrates “such as rice, bread, pasta and potatoes”, at least five portions of fruits and vegetables, some protein, some milk, some dairy and minimal saturated fat.

However, a recent report serves to highlight the confusion consumers face when it comes to food: it claims that the official advice on low-fat diets is outright wrong, even damaging.

Led by the National Obesity Forum and the Public Health Collaboration, the report (not peer-reviewed, it’s worth noting) attacked a host of official health proposals. It claims that “eating fat does not make you fat”, and criticises Eatwell Plate’s small fat allowance. The report also stated that saturated fats have been unfairly demonised, as there is allegedly little evidence to suggest that they cause heart disease. Meanwhile sugar consumption should be dialled down to zero, apparently, and calories shouldn’t be counted, as an abundance of them won’t cause obesity. Also, forget about the exercise - apparently a bad diet can’t be outrun, according to the report.

Professor David Haslam, chairman of the National Obesity Forum, said: “As a clinician, treating patients all day every day, I quickly realised that guidelines from on high, suggesting high-carbohydrate, low-fat diets were the universal panacea, were deeply flawed. Current efforts have failed – the proof being that obesity levels are higher than they have ever been, and show no chance of reducing despite the best efforts of government and scientists.”

Dr Aseem Malhotra, consultant cardiologist and founding member of the Public Health Collaboration reinforced this by saying the guidelines were “perhaps the biggest mistake in modern medical history, resulting in devastating consequences for public health.” Under current dietary guidelines, obesity levels have indeed increased in the UK, with nearly two-thirds of men and women overweight or obese, costing the economy more than £3bn per year.

In the face of such starkly opposed sides - both backed by seemingly reputable experts who claim all their research is based on empirical evidence - what are consumers meant to do?

The vilification of fat

In 1983, it was recommended that overall dietary fat consumption should make up only 30 per cent of total daily energy intake – 10 per cent of which, at most, should come from saturated fat.

The recommendations came from a number of research papers published at the time, which suggested a link between saturated fat intake and increased levels of LDL cholesterol – the cholesterol which has been connected to increased risk of heart disease, stroke and atherosclerosis.

An even simpler reason for the suggestions boiled down to this: fat has more calories per gram than carbohydrates – nine calories per gram versus four, to be exact. This shape to future official guidelines, and gave birth to the low-fat high-carbohydrate mantra. Fat was cemented as public enemy number one.

As a result, the fat eliminated from people’s diets was to be supplemented with an increased intake of carbohydrates. Tipping the scales in favour of carbohydrates were promises of weight loss as a result of higher fibre content, elevated levels of serotonin to aid sleep and boosts in mood from feeling fuller.

But obesity levels continued to soar, and health experts shifted their focus to the next culprit: carbs.

The low-carb era

An analysis by The American Journal of Clinical Nutrition combined the results of 21 studies and found that “saturated fat was not associated with an increased risk of coronary heart disease”. Other studies demonstrated the positive effect on testosterone levels in men from increased saturated fat intake, and have noted increased levels of triglycerides (the stuff that makes you fat) from lower fat diets.

As a result, dieticians developed a deep suspicion of carbs, and sugar in particular, and diets like the Atkins regime became more and more popular.

In part, the report by the National Obesity Forum and Public Health Collaboration uses the research that propped up these low-carb high-fat diets as a means by which to attack the general consensus surrounding healthy eating. Dr Malhotra, who led the latest report, previously worked in a pressure group called Action on Sugar – a group that has tried to get the food industry to reduce the amount of sugar added to food.

The reasoning goes something like this: guidelines encouraging greater carbohydrate consumption are oblivious to the fact that sugars constitute a vast amount of refined carbohydrates. By cranking up the sugar intake we ratchet up the risk of type 2 diabetes; this in turn could spark further health problems including obesity.

The logic seems sound, and yet obesity levels have continued to soar in the face of this research. The notion that all sugar should be avoided also ignores the fact that our brains require a significant amount of glucose for optimal functioning.

Everything in moderation

In the face of an industry that can’t make up its mind about how people should eat, it’s no wonder obesity levels have grown to epidemic proportions. So what can be done?

Professor Susan Jebb, the government’s obesity adviser, believes that the current debate needs to expand beyond the battle between carbohydrates and fat. She said: “We’re eating too many calories – if we want to tackle obesity people do need to eat fewer calories and that means less fat and less sugar.” And she’s right. If decades of research have pointed to anything assertively, it’s that calories count, and paying attention to portion sizes could take us a long way.

Both fat and carbohydrates are necessary for our bodies to function. The solution? Enjoy everything in moderation. Eat fruits without fearing fructose, don’t throw away the egg yolk, get a decent amount of protein and yes, you should have your slice of cake too.