Intellectual Property Issues: Patents

Lars Poulsen - 2001-01-31


For a while, I have been convinced that the patent system (at least the US version of it ) is severely broken, and we should work on getting congress to initiate an overhaul of it. (Some of my more cynical colleagues will argue that the political system is broken even worse, and it it impossible for politicians to touch an administrative system and not leave it in even worse shape.)

The idea of the "utility patent", as embodied in the ***LINK US Constitution

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
(An extensive commentary on this can be found ** LINK here .)

The basic idea is this: In order to promote technical innovation, we want inventors to publicly describe how their inventions work, so that others can learn from them. In order to entice them to do that, we will give them in return the exclusive right to manufacture the new device for a limited period, originally set at 20 years, but currently set at 17 years. This worked well back in the days when dissemination in printed form would take a few years, but the useful life of an invention could be close to fifty. In the meantime, however, the system has somewhat fallen apart.

A century ago, most patents dealt with mechanical machinery. Once you had an example of the machine in your possession, it would be fairly clear to see how it worked, and there was a strong incentive to get the protection of the patent. As engineering progressed from mechanical to chemical, a very large number of patents described manufacturing processes, which would not be possible to discover from examination of a manufactured sample. For these inventions, a viable alternative to patents would be trade secrets: If you don't tell anyone how it is done, they cannot match your manufacturing prowess unless they can outsmart you by independently coming up with the same invention (or an even better one). At this point, it is unclear which is the better path: To patent (and publish, and have protection for a limited time) or to keep the invention secret (and possibly have protection for a longer period before the competition catches up). When you factor into this equation that if you apply for a patent, it might be denied, and that the judicial system affords some degree of protection against disclosure of the secret by malicious employees, it might indeed be better for the corporate inventor not to disclose the invention through the patent process.

To help re-balance the equation in favor of the patent process, Congress legislated an improved patent process, where the invention is not published until after the application has been reviewed, allowing the inventor to maintain the trade secret protection if the patent is denied. Again, this was not unreasonable if the evaluation process was short, and the lifetime of the patent was shorter than the useful life of the invention.

Fast forward to our time. Today, a patent examination may take 2-5 years, while the useful life of many inventions is 2-10 years. Add also, that the various branches of technology have become so complex that it is very hard to examine whether an invention is new; this is why it takes so long to examine, but it is still not uncommon to discover that the patent office has granted a patent on something that was well known in the industry to which it applies, long before the claimed date of "invention". This means that even after a patent is issued, nobody really knows if it is valid, until it has been tested in court.

Given these absurdities, it is entirely possible that as I go about my daily business, I will develop something, about which I will assume that since I am not a genius, the very fact that I came up with it is proof that it is something which is "obvious to a persion skilled in the technical field". And it it so, it is according to the law not patentable. But if someone else believed it to be not obvious, they could have invented it at the same time, and filed a patent application, which is now being reviewed and may be granted in two years, about the same time I bring a product to market, based on my own work, with no knowledge of the work of that other person. In fact, they may decide not to pursue any work of their own to exploit their invention, but pounce on me exactly when they discover that my work is profitable. At that point, their patent surfaces like a submarine attacking a cargo ship ... and in fact this tactic is known as a submarine patent.

Large companies defend themselves against this by filing a bunch of marginal apllications of their own; then if a competitor tries to spring a submarine patent on them, they will fight back by pulling out a stack of their own patents and essentially say: "We may be infringing on your patent - which by the way we believe is invalid - but you are also infringing on several of ours. Why don't we agree not to sue each other over this?" That works for IBM and Motorola, but not for the smaller company without deep pockets.

Here are some patents with some comments on each:

As you can see, I am not against patents per se, nor even against software patents. What I am against are three things:

My signature is on an application that is currently under evaluation, so obviously I believe there is some value in the system.

*** H@ Copyrights Like patents, copyrights are an assignment of a monopoly for a limited period of time. And like patents, copyrights are straining under technological change.

In the old days, the printing press was an expensive piece of machinery, around which an entire business was built. Today, the photocopier and the personal computer allows anyone to become a publisher and a printer. We should not be surprised that laws that used to successfully regulate the interactions between create artists (including writers), publishers, printers and libraries are straining under this new reality.

Copyright laws attempt to balance the rights of writers (and artists), publishers and the public. Unfortunately, it is mostly the publishers that have been bending the ears of the legislators with suggestions on how to amend the laws. Thus, these revisions have unfairly shifted the balance in favor of the publishers. This should be stopped.

Part of the bargain of copyright included:

Both of these aspects have been assaulted by the publishers. The temporary monopoly has been extended and extended over the years, to the extent that I believe that no material owned by a corporation has passed into the public domain for over 50 years. And the "Digital Millennium Copyright Act" now makes it illegal to bypass any technical copy protection scheme for any purpose whatsoever, thereby effectively removing any fair use.

Some other articles about patents:

More pages

(End of page)