Which Patent Reform?

Who is behind the current [by many accounts flawed] legislation to reform the patent system? Is it parties that feel oppression under the current system, or is this just a tweak by major stakeholders and proponents of a powerful Intellectual Monopoly Regime?

IEEE Spectrum has a nice article on the current cacophy surrounding patent reform:

While representing diverse constituencies, the critics and reformers largely agree on the problem: overly broad or obvious, unchallengeable patents hobble legitimate innovators. The cause is twofold. First, patents are much cheaper to obtain than to invalidate. The legal presumption of patent validity erects a high bar against a challenge, so even an idiotic patent can present a potent threat, not least because patent lawsuits can be fearsomely expensive to defend or prosecute.

Amen to that. The article points out that some of the currently proposed reforms may actually make things worse. We've talked about that before. Proposing unworkable patent reform solutions has a disasterous two-fold effect on meaningful reform: a) the bad reform will fail, because even supporters of good reform can see that it doesn't help and b) the patent reform movement loses steam, because the general public walks away from the failed reform with a bad taste in their mouths.

I find it interesting that meaningful reform, such as the independent invention defense, or automatic premature patent revocation, aren't being discussed. Do the drafters of current legislative reform attempts have an agenda to preserve many of the problems in our patent system? Or are they simply incompetent to perform meaningful reform?

BountyQuest-Lite?

Peter Zura has some interesting commentary on the prospect of the open-source patent pools expanding to include efforts for invalidating patents with prior art.

Now, if we could just add offensive counter-measures to the arsenal (you threaten me with your patent, I threaten you with the patent pool).

Stymied by Patent Trolls

MSNBC has a great article that tells the [oftenheard] story of an innovative startup that has been "put on ice" by a patent troll.

As we've seen in the past, this kind of thing happens to not only startups, but academic researchers and entire industries as well.

Fearmongering Among Intellectual Monopolists

Melanie Wyne, of the Initiative for Software Choice (which is, if anything, against software choice), has a murky editorial over at cnet whose main goal, it seems, is to try to get current patent, copyright, and trademark stakeholders worked up into a frenzy about Massachusetts' OpenDocumnet Format plan. Why is Melanie opposed to OpenDocument? OpenDocument will allow Massachussetts the freedom to move away from MS Office and use the freely available OpenOffice instead. That's bad for Microsoft. And what is bad for Microsoft is bad for ISC. And what is bad for ISC is bad for Melanie Wyne. This is corporate shilling at its best.

I said the editorial was murky. Let me substantiate that by pointing out all the misdirection and false analogies:

1. First, the term "intellectual property" and "IP" are strewn liberally throughout the editorial. What is Ms. Wyne talking about when she uses this term? She wants us to think of patent, copyright, and trademark as parts of one great whole, yet her reasoning around these separate concepts is clearly confused. In one place, she must have meant patents, because clearly her statements don't make sense if she is talking about copyright. In another, perhaps it was copyright, because trademark doesn't fit the bill. The reader is left to sort it all out, but the intention is that the reader will not take this step -- that he will accept the world-view in which IP is some sort of natural right. It is anything but.


2. Ms. Wyne equates the lessening of government granted monopoly over ideas with government confiscation of private property, as in the recent Supreme Court decision in Kelo v. New London. This obvious confusion over property stems from her acceptance of the idea of "intellectual property" as something that is similar to real property, including the characteristics of scarcity, non-transferibility, etc. -- characteristics that ideas don't have in common with physical property. Reason Online has more on this misleading way of framing the debate.


3. Ms. Wyne talks about "confiscatory government policy," equating the state of Massachussetts' choice of a file format with the unjust British seizure of Boston in the 18th century in response to the American Rebellion. Confused at how these are linked together? You should be. Melanie tells us that they are the same because in both cases, a government is exercising its sovereignty. Still confused? The only way any of this could possibly make sense is if a document format really were a piece of property, such as that on which Fenway Park sits, and if the adoption of OpenDocument by Massachussetts somehow seized the Fenway Park site by means of force. But neither is true. Microsoft's proprietary document formats are safely tucked away in Microsoft's hands. Massachussetts won't take them away. In fact, Massachussetts isn't even trying -- what they are doing instead is choosing a different format for their own use. Which makes Ms. Wyne's point not only misleading, but outright false.

If Ms. Wyne were truly concerned about confiscatory government policy, she would be outraged at the growing number of commonly held ideas that are confiscated by our government and turned into private monopolies through the abuses of our patent, copyright, and trademark policies. To suggest that the opposite is true, that freeing ideas is the same as confiscating them, is to pretend that water is dry and fire is cold.

On this Thanksgiving weekend we can all thank Ms. Wyne for one thing: she gave us a big old Turkey for an editorial. Happy Thanksgiving everyone!

BlackBerry v. NTP Update

If you are following our coverage of the BlackBerry patent case, you may find an article by the Associated Press interesting. Here are a few quotes for your enjoyment:

"I have spent enough of my time and life involved with NTP and RIM," [U.S. District Judge James R.] Spencer said. [...] If Spencer is frustrated, few people would blame him. Patent challenges are proliferating. And this case has been especially time-consuming, even in a court that prides itself on its speed in dealing with litigation.

[...]

Robert Kerton, an economics professor at University of Waterloo in Canada, says the case demonstrates the need to reform the patent system, allowing real producers to get down to business.

"But don't hold your breath," he said, "because thousands of attorneys really love the tangled system."

The Canadian government, too, is incredulous. Earlier this year, it filed a brief in a U.S. appeals court, claiming that the lower court's decision could have a "chilling" effect on innovation by Canadian companies.

[...]

NTP is often portrayed as a so-called "patent troll," a company with no products and little infrastructure. These predatory companies amass patent portfolios with the intent of filing suits against legitimate businesses. They have become many corporations' nightmares.

But from the court's opinion, things aren't so cut-and-dried,

"RIM's infringement was clear," Spencer wrote in one opinion. "Indeed, it offered no real defense to NTP's infringement case at trial."

The article goes on to discuss what possible outcomes would look like. The complete shutdown of the BlackBerry network is still entirely possible, but unlikely. It would be interesting, however -- if the RIM network were shut down tomorrow, how many BlackBerry users would suddenly become interested in patent system abuses, and be willing to write to their senators and representatives?

Father of the Automobile: George Selden?

Who invented the modern automobile? Ford? Daimler? How about George Selden? The USPTO issued him a patent on the technology in 1895, and he used it to extract royalties against all car makers for years -- even though he had never built an automobile himself.

Selden won an initial judgement when Henry Ford tried to challenge the patent. Selden's holding company then went so far as to advertise warnings in the press, claiming that by buying a Ford they "might well be buying a ticket to jail."

Sounds awfully similar to the claims that end customers will be liable for merely using Linux based on some murky intellectual property claims, doesn't it?

Ford continued contesting the patent. In the words of Brown and Michaels:

It was reported that at one point during the trial, an automobile race was being organized outside the windows of the courthouse. Ford's lawyer looked out the window and said to the judge, "your honor, I see a Winton, and a Duryea, and many Fords out there - but not one single Selden!" He was right, of course - Selden was a patent attorney, not a car builder. In the course of the suit Selden did build a car according to the patent (for the first time, apparently), and it managed to stagger along under its own power for a short while before expiring. Finally, only one year before it was to expire, the Selden patent was declared invalid (except as to cars powered by the Brayton-type external-compression two-stroke engine described in the patent, which Selden's own expert testified at trial was not actually used by anyone making cars at that time).

This is a classic example of the problem with the 'usefulness' requirement for patent grants. We've talked about this once or twice before. Patent Examiners can't hope to have a chance of accurately determining whether a device actually works or not until they get a chance to look at a real instance of the working device.

This was the third in a series of stories about seminal inventions hindered by patents. Read Part I or Part II.

Blackberry Tiptoes

Update on the RIM v. NTP patent case: RIM now claims that they are ready to deploy technology that will skirt the NTP patents and allow the BlackBerry network to keep running even in the case of a loss in court.

Patent Commons

The Open Source Development Lab (OSDL) launched their Patent Commons reference library today. Key partners in the project include some of the same organizations as the Open Invention Network.

The real genius of both of these projects is their subversive nature; instead of waiting for the USPTO to change, or waiting for Congress to enact meaningful patent reform, these organizations took action, hoping to spur innovation by creating patent pools voluntarily that provide wide access to inventors.

But it isn't yet clear that either of these projects will allow participants to use the pledged patents defensively. By defensively I mean as a weapon of counterattack. For example, a small free-software developer -- let's call him Joe -- writes program Z, using perhaps some technologies from the patents in the Patents Commons and OIN. Company A decides that program Z infringes one or more of its patents that aren't in the pool, and writes a cease-and-desist letter to developer Joe. What can Joe do? If the pooled patents could be used defensively, he could threaten a countersuit against company A for infringement of some other patents in the database (XML patents, anyone?) and hope to negotiate a settlement. If he can't use the patents defensively, he is left to his own devices, which most likely include rolling over and removing his software until he can find a way to rewrite it so that it doesn't infringe, which isn't a very likely prospect considering how many overly-broad software patents are out there.

These efforts are definitely a step in the right direction, clearing large sections of the software patent minefield. Whether or not they expand to include defensive mechanisms and even legal counsel are developments we'll monitor closely.

The Wright Brothers & The Blackberry

By now, a lot of you have heard that the Justice Department has jumped into the RIM v. NTP fray, worried silly that the outcome will disable the thousands of BlackBerry devices that the government relies on to conduct business.

What you may not know is that this is nothing new; the government has routinely had to step into patent battles to prevent the world from collapsing in on itself. In fact, it has had to do this for some of the most prominent inventions known to mankind. Let us start with the airplane.

The Wright Brothers held several key patents on the airplane, and rightly so. Another inventor by the name of Glenn Curtiss (who coincidentally, was backed by Alexander Graham Bell) held patents on some additional aeronautic technology including ailerons, empennage, and a new engine. The Wrights wouldn't license their patents to Curtiss. Curtiss tried to build planes faster than the Wrights could litigate, and tried to invalidate some of their claims based on prior art from Langely and others. Years and years were wasted as these guys battled it out. Others also tried to build planes using the Wright innovations, but were largely stymied by the Wrights' demand for very high royalties. Meanwhile, Europe was progressing to flight at a rapid pace. Then WWI broke out.

Of the outcome to all this, Idle Words writes:

The United States government finally put an end to the patent strife in 1917. Mindful of the impending war, it insisted that the rival parties form a patent pool - in effect, removing patent barriers to creating new airplane designs. Together with the war, the patent pool inspired a golden age of American aviation. The pool stayed in effect until 1975; companies who wanted to preserve a competitive advantage did so using trade secrets (such as Boeing's secret recipe for hanging jet engines under an airliner wing).

I believe that the Wright patent story drives home the intellectual bankruptcy of our patent system. The whole point of patents is supposed to be to encourage innovation, reward entrepreneurship, and make sure useful inventions get widely disseminated. But in this case (and in countless others, in other fields), the practical effect of patents turned out to be to hinder innovation - a patent war erupts, and ends up hamstringing truly innovative technologies, all without doing much for the inventors, who weren't motivated by money in the first place.

It's illuminating to point out that all three transformative technologies of the twentieth century - aviation, the automobile, and the digital computer - started off in patent battles and required a voluntary suspension of hostilities (a collective decision to ignore patents) before the technology could truly take hold.

I'd add that it isn't just these three seminal inventions - the story of the modern steam engine and its patents' effect on derailing the Industrial Revolution is also very seminal. But back to Orville and Wilbur:

The Wright brothers won every patent case they fought, and it did them absolutely no good. The prospect of a fortune wasn't what motivated them to build an airplane, but ironically enough they could have made a fortune had they just passed on the litigation. In 1905, the Wrights were five years ahead of any potential competitor, and posessed a priceless body of practical knowledge. Their trade secrets and accumulated experience alone would have made them the leaders in the field, especially if they had teamed up with Curtiss. Instead, they got to watch heavily government-subsidized programs in Europe take the technical lead in airplane design as American aviation stagnated.

So, does the BlackBerry live or die? The government is asking for at least an exclusion for their workers, but are the government's 200,000 or so BlackBerry users enough justification, economically, for RIM to keep the network up? Idle Words asks the questions you should be pondering at this point:

if the patent system doesn't even work for the archetypal example - two inventors, working alone, who singlehandedly invent a major new technology - why do we keep it at all? Who really benefits, and who pays?

Update: Developments in the BlackBerry case.

This was the second in a series of stories about seminal inventions hindered by patents. Read Part I or Part III.

Supreme Court to Reform Patent Law?

The Financial Times is suggesting that the US Supreme Court may make some dramatic decisions regarding patent law in the near future:

The court has three cases before it and a fourth that could arrive soon, which test some of the most fundamental tenets of US patent jurisprudence. Which country's courts should decide patent disputes that cross borders? And even more fundamentally, What can be patented in the first place? How obvious must an invention be to forfeit patent protection? And should challengers in patent infringement suits – even those who are not using the patent to produce anything – be allowed to shut down defendants whose products depend on many patents?

The article cites four cases that could decide many of these issues, the first of these, Laboratory Corp v Metabolite Laboratories, involves a patent for a system that can diagnose a vitamin deficiency -- essentially an algorithm (whether embodied in a computer program or the brain of a medical doctor). At the heart of the case is the question of what subjects can be patented. The outcome will have much to say about the validity of software and business method patents, and about what constitutes non-patentable "laws of nature, natural phenomena, and abstract ideas."

Another important case is that of KSR International v Teleflex, where the standard of "obviousness" could be redefined:

Microsoft and other high-technology companies have urged the court to take this case, arguing that the federal patent court allows too many obvious technologies to be patented – such as the adjustable accelerator pedal at issue in KSR International v Teleflex, the case before them. Adopting a lax standard of obviousness means more patents are issued, and technology companies can be sued more often by holders of dubious patents, they say.

The other two cases, one involving eBay and one involving RIM (makers of the BlackBerry) will test courts' abilities to issue preliminary injunctions against alleged patent infringers. eBay argues that since any one piece of software could be potentially covered by hundreds of [dubious] patents, any one patent holder can effectively disable a software service or remove a software product from the market unjustly. The RIM case (which the Supreme Court has not yet taken up) faces a similar possible outcome: court-ordered shutdown of the entire BlackBerry network in the United States.

The obvious question to ask now is, where do members of the Supreme Court stand on the issue of IP-maximalism?

The Open Invention Network

IBM, Sony, Novell, Red Hat, and Philips today announced that they are forming the Open Invention Network, which will license their patent portfolio to all takers, royalty free, in exchange that they not exert their own patent rights against Linux and open source software. They are starting out with the Commerce One patents that Novell acquired for $15.5 million a few months ago, and claim to have enough investment to continue amassing more patents.

This is an exciting development, and could become vastly more exciting as this firm, or others like it, generalize beyond open source. More on this at 271. As Jack Messman, head of Novell, said, "This is a breakthrough idea whose time has come."

China's Entry into Intellectual Monopoly

NPR has been covering the emerging strength of the Chinese marketplace, with an article yesterday on the growing Chinese software outsourcing industry and today an interview with Mark Cohen, U.S. Attache to China on intellectual property. Mr. Cohen believes that China needs to bolster their patent law.

So, I thought it would be nice give China some suggestions as they think about how to shape their policy, suggestions gleaned from mistakes we have and are making with our system.

So here it is, China, a laundry list of possible patent system innovations that you can try out that will not only help you catch up with the U.S. in matters of innovation, but even surpass it:

• Allow the Independent Invention Defense


• Limit the length of patent monopoly grants. 20 years is far too long for many classes of patents.


• Limit Patent Trolls: Revoke patents that don't have either a licensee or a product on the market within three years of issuance. The USPTO once required that a working instance of the described invention be submitted with the application. These submittals helped the examiner determine usefulness (even today, if a patent can't function as described, the patent is invalid). This practice was abandoned out of practicality. Requiring that the inventor demonstrate usefulness in the marketplace gets us back to actually inventing things and rewarding that, instead of rewarding the act of dreaming up ideas and submitting paperwork to the USPTO


• Implement a better test for non-obviousness


• Open up the patent review process to all interested parties; allow reviewers to accept input on prior art and obviousness from actual experts in the field. This isn't to say that patent examiners are slouches, simply that the task of determining obviousness and knowing about all possibly-related prior art should be in the hands of more than one expert, especially if that one expert is overworked, undercompensated, and chained to their patent office desk for the majority of their waking life.


• Make it free to file a Statutory Invention Registration (SIR), which provides an inventor with the protection of public record of the invention, but waives all monopoly (patent) rights to the invention. Publishing the details of an invention in an academic journal has much the same effect, but submitting an SIR helps the patent office find prior art much more effectively (prior art unknown to examiners being one of the main problems with the current system). SIRs are woefully under-utilized in the US system, both because they are still expensive to obtain, and because they are little-known (try and find some info about them on the USPTO's webpage, I dare you). Since this is largely a service to help the USPTO, why do they charge us for it?


• Others?

This is just a start. If you have other ideas, post them in the comments and I'll add some of the best to this list. I'd like to eventually put these together as a series of letter-writing suggestions for you to send to your senators and representatives.

Patents Chilling Science?

SIPPA and AAAS recently conducted a survey on the effects of patenting on science. From the report:

Of the 40% of respondents who reported their work had been affected [by patents], 58% said their work was delayed, 50% reported they had to change the research, and 28% reported abandoning their research project. The most common reason respondents reported having to change or abandon their research project was that the acquisition of the necessary technologies involved overly complex licensing negotiations.

I don't know about you, but if I had to choose between preserving scientific research and preserving the patent system, the choice of which to keep and which to reform is pretty clear.

If you'd like things to change, maybe you should send a nice letter explaining these findings to your Senators and Congressional Representatives, and urge them to draft/support legislation that decreases the ability of patent-holders to stifle research and innovation (no, we aren't talking about backing this kind of patent reform). Perhaps you'd also like to suggest the independent invention defense.

Ridiculous Patent: Antigravity device

The USPTO issued a patent on an antigravity vehicle on November 1st, 2005.

Now, if this were a real device, even I'd admit that it would be quite the breakthrough.

Problem is, it contradicts the laws of nature. The patent office declares:

The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

Physicists argue that, theoretically, anti-gravity devices imply the availability of unlimited energy, which is not a tenable position. According to Robert Park of the American Physical Society, "If you design an anti-gravity machine, you've got a perpetual-motion machine."

So, accordingly, this patent shouldn't have been granted. But it was, 8 days ago. Luckily, since it can't be built, there isn't much chance that you'll ever infringe it.

The patent also claims that said vehicle can travel at close to the speed of light. I wonder then, if it might infringe the Hyper Light Speed Antenna? Maybe these guys can cross-license.

Ridiculous Patents #3: Highlighting Numbers

Today we highlight a bad patent that is still being examined, so there's still a chance it won't be granted. But don't hold your breath. It is titled "Method and apparatus for visually emphasizing numerical data contained within an electronic document" and covers exactly what you think it does. If granted, anyone writing software that highlights numbers in a document at the user's request may be infringing the patent -- at least until February 11, 2024, when the patent would expire.

Now that's innovation.

What would Microsoft do with such a patent? Here are some of their options:

1. Prevent all competitors from implementing this feature, including word processors, web browsers, spreadsheets, email, etc. Only Microsoft's products would have this feature. Taken by itself, that doesn't seem like much of an advantage to Microsoft, but combine it with other pending patents, and we start to see a nice chunk of this idea space being owned by Microsoft alone.


2. Collect royalties from all competitors that want to implement this feature. Note that Microsoft's main office suite competitor currently appears to be OpenOffice, which, since it is free software, would not be able to afford even a small royalty. A royalty of $1 per copy would be enough to shut down virtually any open source software project.


3. Do nothing. Hold the patent defensively.

Luckily, Microsoft has a pattern of holding patents defensively (like most large software companies). But if MSOffice is ever seriously threatened, it seems only natural that the shareholders and board of directors would demand that the company take offensive measures against competition...

If you enjoyed this post, you might want to read:

• Which Side of the Plastic to Write Upon?
• Father of the Automobile: George Selden?
• Biotech Patent Absurdity

Ridiculous Patents #2: The Wheel

Do you live in Australia? Do you use a wheel (yes -- a wheel)? Then you may be infringing John Keogh's patent.

But hold on -- there is an interesting twist to this story. Mr. Keogh filed this patent with the express intention of emphasizing how the "patent system was flawed because submissions could be prepared without professional help and did not need to be examined by the Australian patent office." The Australian patent office itself claims that applications such as this are fraudulent, but, as far as is known, the patent has never been invalidated.

I appears that Mr. Keogh's main complaint is that the patent system can be used without lawyers (he is a freelance patent lawyer, so the change in the Australian system threatens his livelihood). No complaints, as far as we can find, from Mr. Keogh about the inherent problems with the patent system, as long as it requires lawyers.

(Once again, this may be old news to some of you. Just trying to chronicle some of the most egregious examples of bad patents.)

* thanks to anonymous poster for pointing out additional information regarding this patent.

Intellectual Rights

Laura Quilter has posted a very thoughtful piece on "the natural right people have to create, invent, tinker, think, imagine, ponder, access information, etc." In it, she outlines four critical components:

(a) the right to create new stuff;
(b) the right to experiment with & learn about existing stuff, gathering information and exploring the world;
(c) the right to communicate information and ideas; and
(d) the right to receive information and ideas.

She toys with calling this collection of natural rights intellectual rights or information rights, but notes that both terms lack a certain zinginess.

These concepts square very keenly with our objectives here at Right to Create -- itself a term we'd lend to that purpose, but it only really encompasses (a). If you have any ideas for a really good term, you might want to join the discussion at Derivative Work.

Evidence of Poor Patent Quality

In all the current legislative talk of patent reform, we see no one addressing what must be one of the biggest problem with our system: patent quality. As one slashdot user put it,

"Obviousness" is such a tricky, subjective criteria that the USPTO seems to have given up on it. Or, at the least, they've combined it with the "prior art" criteria, so that anything that isn't already in the patent database is both without prior art and non-obvious.

The other test for obviousness (the one that is somewhat sane) is apparently left for the courts to decide after the patent is granted.

You might also be interested to know that our patent system originated in 15th century England, and had nothing to do with novelty, non-obviousness, or prior art and everything to do with exclusive, state-sponsored monopoly.

The striking thing here is that our current patent system is starting to look a lot like the old 15th century English one, where "low quality" patents are granted willy-nilly, punishing the general public by levying a sort of tax on everyone except the owner of the patent. In other words, it seems more and more to have everything to do with exclusive, state-sponsored monopoly and nothing to do with protecting innovation and inventors.

Now, this may be a valid perspective, but where is the evidence to back it up? How about BustPatent's list of invalidated software patents? This is certainly only a sampling, but look at it this way -- for each of these patents, the applicant likely spent $10K-$20K fighting to get it granted. The USPTO likely spent 2 years examining the patent before issuing it. And, to get it invalidated, either the USPTO had to spend more time re-examining its mistake, or (more likely) a costly court battle ensued between the holder and an innocent "infringer."

Now multiply this for all the invalid software patents that aren't listed.

Now multiply by all the other fields for which patents are issued (the linked list is for software patents only).

Now add the cost of all "infringers" who rolled over at the first cease-and-desist letter because they knew they didn't have the resources to contest a patent, even if they thought they could eventually prevail. How much money didn't these guys make, that they should have? How much time was spent inventing, just to be stopped by an unjust claim?

What is the total cost? I shudder to imagine.

Ridiculous Patents #1: Swinging

Have you ever sat on a swing and made yourself move just by alternately pulling on the two ropes/chains? If you answered "yes," you have infringed US Patent #6368227.

Think you can skirt the "invention" by adding a forward and backward motion so that you end up swinging in an oval-shaped pattern? Sorry, your blatant patent infringing actions are in direct conflict with claims 3 and 4. Let's face it, the inventor of swinging worked very hard to develop this idea, and has to recoup his costs somehow. Doesn't he deserve some of your money?

If it weren't for the incentives provided by the monopoly power of patent grant, maybe we never would have figured out how to swing this way.

What will they grant patents for next? Salt?

It's enough to make you think that the storyline patent actually stands a great chance of being granted, doesn't it?

(Note: this patent was filed 5 years ago and granted in 2002, so it may be old news to some of you. If you haven't heard of this before, welcome to PatentInsanityVille. We'll try to highlight one of these on a regular basis, brought to you by patent offices around the world).

The Independent Invention Defense

Suzanne Scotchmer summarizes the argument for independent invention defense against patent infringement - a defense that is currently not allowed. Its introduction would address one of the patent system's seminal problems: that two or more inventors can arrive independently at the same invention, either simultaneously or within a certain timeframe of one another, without any knowledge of the work of the other. Is it fair for the first to exclude the other?

If ... independent invention is a valid defense to infringement, the patentholder has an incentive to limit its own market power, resulting in a lower price. This occurs because the independent inventors can enter the market (e.g., by developing products in “clean rooms”). Faced with the threat of entry, the patent holder may choose to license some potential independent inventors, saving them the cost of independent invention. The increased competition works to lower price.

As I see it, this would kill three birds with one stone: First, it introduces market pricing into licensing (where currently we have monopoly pricing). Second, it introduces a fairness for inventors into the system that was lacking beforehand -- a right to create, if you will. Third, it improves patent quality; patents covering obvious ideas will be of virtually no value, since the independent invention defense will likely exclude them from ever receiving substantial royalties.

Text from this post is placed in the public domain. Feel free to liberally cut & paste (in whole or in part) to write to your Senators and Congressional Representatives, or for any other purpose that you might deem useful.

Enforceability of Published Provisional Patent Applications

As we covered yesterday, a provisional patent application was published covering a storyline. Several other sources picked this up and pointed back at us, including slashdot, and there was quite a bit of discussion at these sites over the issue of whether the applicant can begin enforcing his patent rights as of the publish date.

Over at the Patent Prospector we get an authoritative answer: yes, the patent application is now enforceable. Quoting from Iskra:

Provisional patent rights and the 18 month publication of applications arose from the American Inventor’s Protection Act (AIPA - 11.29.00). Before AIPA was enacted, the applicant had no rights until the patent was granted. Contrastingly, amended 35 U.S.C. §154(d)(1) (thanks to AIPA) now provides a right to obtain a reasonable royalty from any person who infringes the invention during the period that begins upon publication and ends when the patent actually issues.

The ways in which enforcement of these claims would restrict your right to create are almost innumerable. Want to do something about it? Write your representatives.

Details of '804: First Storyline Patent in History

It is as bad as we thought -- the claims for Andrew Knight's storyline patent (app #20050244804) are very broad. Here is claim #1:

1. A process of relaying a story having a timeline and a unique plot involving characters, comprising: indicating a character's desire at a first time in said timeline for at least one of the following: a) to remain asleep or unconscious until a particular event occurs; and b) to forget or be substantially unable to recall substantially all events during the time period from said first time until a particular event occurs; indicating said character's substantial inability at a time after said occurrence of said particular event to recall substantially all events during the time period from said first time to said occurrence of said particular event; and indicating that during said time period said character was an active participant in a plurality of events.

two-seventy-one patent blog points out that some of the claims look a lot like things done in the movie Memento. Prior art is important (since these claims haven't yet been examined on merit), but that is somewhat beside the point. The real issue is whether such ideas should be patentable at all. It will be interesting to see how the patent office ends up deciding on this, as well as what the courts decide in ensuing litigation over the next few years.

Update: some information about the enforceability of this patent for you.

Patenting Storylines?

The USPTO has published the first patent application to claim a fictional storyline. What does this mean? It means that the author of this provisional patent application, Andrew Knight, can now "assert publication-based provisional patent rights against anyone whose activities may fall within the scope of his published claims, including all major motion picture manufacturers and distributors, book publishers and distributors, television studios and broadcasters, and movie theaters." Knight's story is about an applicant to MIT who is so anxious to know if he has been accepted that he prays one night to stay sleeping until the admissions letter arrives. 30 years later, the lost letter arrives and he wakes up to find that he has lived a normal life, of which he remembers nothing, and must spend the rest of the story rediscovering who he was during that lost time as a "philosophical zombie."

Taken as a whole, a patent on such a concept doesn't seem too worrisome at first -- but when we get a look at the individual claims, it will likely be more troublesome. Just a few months ago, The Guardian outlined just such a scenario and its disasterous results:

Here's one example of a hypothetical literary patent:

Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.

Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.

Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.

If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited - in effect, censored - by the patent holder.

The article points out that Hugo might have infringed not only the above fictional patent, but other simple patents as well, such as a patent on a "fictionalised portrayal of the Battle of Waterloo." Likewise, if the three claims listed above belonged to seperate patents instead of a single patent, Les Misérables would have infringed all three.

If the entertainment industry becomes as entangled with plotline patents as the tech industry is with software patents, we might begin to see the decline of the independent filmmaker (who can't afford the licensing and litigation costs that large studios will certainly impose), increased production costs, and greatly decreased diversity of offerings -- all symptoms of a market that thrives more on monopoly power than on innovation.

Updated: see new post describing some details of the patent.

Samuel Alito & Copyright

CNet and The Patry Copyright Blog point out that Judge Alito may have a "strict view on the kinds of inventions that merit copyright protection," which is comforting to technology businesses and small startups in general, because "the technology industry is probably better served by someone more circumspect if you believe the industry thrives on innovation and not on monopolies."

If this is a true window on how Alito views intellectual property, it is a relief. We'll wait and see whether the judiciary committee has the foresight to probe a bit deeper on this topic.

Update: derivative work is covering Alito's copyright history in depth. copyfight also has coverage.

Must Read: A Market for Ideas

Quick quiz: Who wrote the following:

"The granting [of] patents ‘inflames cupidity’, excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits...The principle of the law from which such consequences flow cannot be just."

Would you be surprised to know that it was The Economist? Okay, so it was a trick question -- this was published in 1851, when such sentiments were widely held.

This month's edition features the highly suggested A Market for Ideas, in which our current patent situation is accurately described, including the skyrocketing trend towards more and more IP and a bit about "mutually assured destruction." Read it.

Debate on IP as a Natural Right

Over at Agoraphilia, they've been having a discussion about IP as a natural right.

Most of the debate is centered around copyrights and patents. Both sides understand that neither patent nor copyright law arose from common law, and seem to agree that in a state of nature (pre-government) it is hard to imagine either one existing. Murky Thoughts chimes with some interesting ideas on how prestige is a necessary commodity for these systems to work, and that in our modern economy, prestige has an important relation to that other commodity of all commodities: money.

What would I hope to add to the discussion? I'd hope to make the point that invention itself is a natural right. They are right -- IP is an artificial structure formed by statutory law -- but forget about IP for the moment. It is the ability to create which forms a natural right. When viewed in this light, the question becomes, "does our IP regime impede on our natural right to create?" And if so, what do we do to fix it?