Right to Create

Ridiculous Patent: Simple Network Protocol

2006-06-09T09:11:00.000-07:00

Note: this was originally to be posted 2 days ago, but blogger.com has been pretty much offline since Wednesday. The Lesson in all this: if you are going to start a blog, just shell out the $5/mo that it costs to get a shared hosting account with a provider of your choice and use WordPress.

Net2Phone, a Voice-Over-IP (VOIP) company that was largely unsuccessful in the marketplace has now turned to the tried-and-true strategy of suing its successful competitors with its overly-broad and extremely obvious patents. It's first victim is Skype.

As Tim Lee over at TechLiberation says,

Where to begin? This describes an absolutely pedestrian networking protocol. There's nothing remotely novel or non-obvious about two computers communicating directly with each other without using a server. I don't even understand what the "invention" is supposed to be. If you asked a random CS major how to implement a peer-to-peer network application, he'd probably come up with a description like this in about 10 minutes.

Some people seem to think that these kinds of bad software patents are anomalies--that there are good ones as well, and that we ought not to throw the baby out with the bath water. Yet I've seen news accounts of more than a dozen examples of bogus patent suits in recent months, but I have yet to see an example of a legitimate software patent. There's an awful lot of bath water here, and I'm having trouble seeing the baby.

He's right. If there is a baby in there, it long ago sunk beneath the murky surface, out of sight and out of breath. Drowned, if you will, by a sea of junk patents handed out willy-nilly by the patent office, who were pursued relentlessly by patent lawyers, patent trolls, and failed companies like Net2Phone and NTP.

Reforming Software Patents

2006-06-05T10:54:00.000-07:00

Some interesting notes from Joe Barr via Philip Brooks, quoting Dan Ravicher (whew!):

Dan Ravicher of the Public Patent Foundation talked about what's wrong with our patent system, and how difficult it will be to ever change it. It seems that at one time, the PTO had their heads screwed on right and rejected purely software patent applications as being "not suitable material" for patents.

Two key things got the PTO off-track and us into this mess. First came the formation of a special court to hear patent cases, created by an act of Congress in 1982. The judges of the new court were not chosen from the ranks of existing judges, but from aides to the Congresscritters who created it, thus guaranteeing that it would always rule on the side of those who had lobbied for its creation and who always want more and stronger patent law.

The second was the State Street decision, which once and for all settled the question of whether pure software patents should be granted. That ruling is responsible for the boom in software patents in the past few years.

According to Ravicher, there are three major blocks to patent reform:
Pharmaceutical firms
Patent law makers (PTO, Federal Circuit Court, Congress)
Patent lawyers
How broken is the patent system? Well, look at it this way. Patents are weapons. If you are hit with a patent infringement suit, it will cost you between 2 and 4 million dollars to defend against it. Even if you win the suit, you're out that cost.

Owning the Idea of Tree Frog Venom

2006-05-30T12:55:00.000-07:00

Solveig Singleton accidentally makes a very strong argument against patent rights in an article critical of actions taken by the Brazilian government to protect the knowledge of indigenous tribes and their discoveries of the many uses of tree frog poisons:

But a claim that indigenous people's or their representative governments "own" the venom of a tree frog, medicinal or otherwise, simply by virtue of having discovered it...? Well, it sounds like patenting a law of nature to me.

To which we say, "exactly." All inventions are discoveries. Does the act of discovering a new fact, idea, or combination of components cause the discoverer to own that fact, idea, or combination, and give them the right to exclude all others from practicing any similar idea? Does it give the holder of patents covering these ideas the right to a complete monopoly over entire industrial sub-sectors? According to our patent system, yes and yes.

Solveig continues:

Would these same discoverers share the risk and blame if the product were somewhere downstream, found to cause birth defects or other harm?

Would the "discoverers" of wireless email (NTP) share the risk and blame if the BlackBerry network went down, or if BlackBerrys were found to cause birth defects or other harm? The answer, of course, is no. Patent trolls are completely decoupled from any responsibility whatsoever, other than the duty they have to spend money on lawyers and extort outrageous fees from 'infringers' through abuse of our legal system. I'm not sure why Solveig brings this point up, unless she's of the same opinion that we are -- namely, that any system which assigns exclusive ownership of discoveries and ideas to only one party (such as our patent system) is inherently absurd. She continues in this vein:

Would they also desire to share in the profits from sales of coffee, tea, and chocolate, claiming to have discovered their property of tastiness? What about the properties of coca leaves and opium poppies? Would they like to share in the profits from the development of those products into painkillers? Would they also like to share in the profits from the sales of heroin and cocaine? What about crack?

Of course, maybe Ms. Singleton hasn't heard of Peruvian patents on potatoes or Indian patents on basmati rice? Or perhaps she hasn't examined the tags of just about any plant, shrub, or tree purchased at a nursery in this country lately, which warn the purchaser that breeding or germinating the plant is in strict violation of the "intellectual property rights" of the grower? Surely Ms. Singleton must be aware of the many 'rights' that companies such as Monsanto exercise, such as the right to sue farmers when Monsanto's seeds blow into their fields.

But the point is this: if patents give exclusive property rights to discoverers of new medicines and technologies, what argument could there possibly be against giving those same rights to the discoverers of tree frog venom? In both cases, some labor and inventiveness was spent to make the discovery. In both cases, something new and innovative resulted.

Perhaps the distinction is that the tribes in the Brazilian Rain Forest didn't know about the patent system when they made their discovery, and therefore didn't anticipate receiving such rights? But then, whoops! -- that would be an admission that discoveries and invention can occur without a patent system in place.

Or maybe the tribes don't deserve this economic benefit because they are primitive, and only 1st world discoverers (i.e., ones that are literate and that wear lab coats instead of loin clothes) deserve patent protection? But then, whoops! -- we shouldn't be foisting strong patent protection systems upon the third world and claiming that this will benefit those countries when the truth is that it mostly benefits us and our large, corporate patent-holding interests.

Ms. Singleton concludes:

Leave it to some of the loudest critics of patents to come up with the broadest theory of ownership yet, most resembling a feudal entitlement.

Wrong, Ms. Singleton. It was proponents of "strong" patent "rights" who have created a system in which such absurdities abound. And it doesn't appear, from the NYTimes article, that the 'loudest critics of patents' are the ones coming up with this tree frog poison protectionist scheme. On the contrary, it was Tribal Chief Fernando Katukina, who appears to be using the simple self-interest of his tribe as his motivator. He should at least be commended for his cleverness in exposing patent systems for what they really are: an artificial scheme to take wealth from one party and give it arbitrarily to another.

All this complaining by IP-maximalists when foreign nations figure out how to use our patent regime against itself only illustrates the true motives of creating these corrupt systems in the first place: to fortify exactly those feudal and aristocratic societies which Ms. Singleton claims to oppose, where status and wealth is determined only be which patent-owning 'family' you belong to.

JPEG Patent Rejected

2006-05-26T11:17:00.000-07:00

The USPTO has rejected the broadest claims of the JPEG image format patent held by Forgent Networks.

It's nice to see the Patent Office doing the right thing, but it's too bad that more than $100 million dollars that Forgent has extorted from industry will never be returned to its rightful owners. Forgent gets to keep that money, regardless of how the PTO rules. For nearly 19 years, this patent has stood without challenge. Now, just over a year before it was to expire, the PTO declares that it is bogus.

So, how would you feel if you had paid hundreds of thousands of dollars to Forgent because they threatened you with a lawsuit that, regardless of outcome, would have cost you millions (average cost of defending oneself in a patent infringement suit stands today at roughly $10 million)? How would you feel knowing that our patent system stood idlely by, while Forgent played this extortion game against hundreds of companies?

And most importantly, how do you feel knowing that this is exactly the kind of behavior that our current patent system encourages, today?

Previously:
Who Owns Your Images?

Funny Dystopia

2006-05-22T09:25:00.000-07:00

A wonderfully creative thread on the dark future of intellectual monopoly is highlighted here.

More Money for Patent System Hijacking

2006-05-21T21:25:00.000-07:00

The government wants to spend money educating judges to be better informed on patent issues, including hiring "specially appointed clerks with patent expertise." At face value, this sounds like a good idea, but TechDirt explains exactly why it probably is not: specialization leads to a type of bias which will likely make the system worse, one in which former patent attorneys become specially appointed clerks and judges. One in which the money spent on this type of special education starts to come mainly from the same interests who have been pushing patent "rights" towards IP-maximalism for the past several decades. The parallels to regulatory capture are too numerous to mention.

New Right to Create Domains

2006-05-21T21:11:00.000-07:00

AJ Rahim has generously forwarded three domains to point at Right to Create, so you may now access the site from www.unfairpatents.com, www.unfairpatents.info, or www.stopunfairpatents.info. Thanks AJ!

Patent Holdouts

2006-05-18T09:03:00.000-07:00

Over at TechLiberation, Tim Lee points to a paper by Chicago law professor Doug Lichtman on Patent Holdouts, and makes this commentary:

What I found most interesting about the paper, though, is how frankly Lichtman—who I don’t think is a critic of patents generally or software patents in particular—lays out the flaws in the current patent system, especially as it relates to high-tech inventions with hundreds of components. He explains how difficult it is for honest technology creators to discover patents that might be relevant to the technology in development, how the system gives inventors the perverse incentive not to search for relevant patents to avoid treble damages, and how the holder of an undiscovered patent can lie in wait until other companies make significant investments based on their patents and then exort large sums of money from the hapless inventor.

Injunctions, Monopolies, and the Free Market

2006-05-16T09:32:00.000-07:00

Yesterday's ruling gives courts full discretion over whether an injunction should be issued when a valid patent is infringed. Why is this so monumental? It boils down to economics.

Prior to this ruling, a non-practicing patent holder (sometimes referred to as a 'patent troll', but also including small inventors without the resources to commercialize their inventions) was simply using the injunction to get monetary compensation from the infringer. An infringer was forced to the "negotiating" table with the patent holder by power of the injunction. The patent holder's task was then to find the highest price that the infringer could bear, and extract that price from the infringer.

Some have argued that this was a fair and efficient process -- the courts didn't have to decide dollar amounts, but left it to the two parties to work out on their own.

But this hides an important economic principle in free markets: that markets, not monopolies should determine prices, and that competition is always good for the market.

In the case of patents, a monopoly has been granted to the holder by the government. Allowing the holder of those patents to then seek rent with that monopoly power, without any oversight, gives holders of patents absolute price control. It gives the holder the power to maximize profits. It gives the holder of the patent power that no owner of physical property posesses, powers that no manufacturer of physical products can ever posess. It elevates patents to a status above actual property.

By allowing courts to use discretion in determining when not to issue an injunction against a patent infringer, the Supreme Court has opened up the possibility for much fairer damages to be awarded to patent holders whose only goal is to be fairly compensated for their inventions. By issuing this rulling, they are telling lower courts that they must not abdicate their responsibility to ensure that damages are fair; when a non-practicing patent holder has won their case against an infringer, the two parties must now argue in front of a judge over what they think an appropriate compensation dollar amount should be, and an impartial third-party (the judge or jury) must make a decision on damages taking those arguments into account.

No more does the non-practicing patent holder get to strong-arm its prey into submission. Fairness is at the heart of every just legal system. The Supreme Court, in issuing this ruling, has understood how unfair monopoly power can be when used solely as a tool of extortion. And it has recognized that patent holding firms have been abusing the courts in this way for years, and that the legal system must change so as not to encourage such corruption in the future.

Supreme Court Demolishes Automatic Patent Injunctions

2006-05-15T09:47:00.000-07:00

Big news today: the Supreme Court, in a unanimous decision, has removed the “general rule” that a permanent injunction should be issued once infringement of a valid patent is established. It reversed a lower court's decision that allowed MercExchange to receive an injunction against eBay.

What this means: patent trolls will find it increasingly difficult to swing the axe of injunction over the heads of researchers, academics, innovative startups, and industry titans. Trial courts have complete discretion over whether an injunction is an appropriate remedy for a patent holder. Had this decision arrived earlier, companies like RIM may have never had to pay out more than $600 million to patent extortionists or suffer years of irreprable market-place harm and multi-million dollar losses of stock market valuation as the spector of such injunctions hung over their businesses.

What this doesn't change: this likely won't affect legitimate competitors with valid patents from achieving injunctions. Only patent holding firms (aka, trolls) will have difficulty in proving that irreperable harm is done by allowing the 'infringer' to continue practicing claims of the patent, and that a monetary remedy is insufficient.

This is a big deal, as it increases your right to create. It diminishes the paper inventor's monopoly over basic ideas, and gives you more freedom to invent and market your innovations without the fear that unscrupulous individuals will be able to thwart it all by gaming the legal system.

This subtle change doesn't destroy the shackles of our broken patent system, but it certainly loosens the bonds that tie innovation down. And perhaps most importantly, it demonstrates that the Supreme Court understands how oppressive the current legal system has become with respect to patent litigation. This decision is, perhaps, a portent of how the Court might feel about several other important patent issues it is schedulued to hear.

Dennis Crouch has more in-depth analysis.

Additional Commentary: Injunctions, Monopolies, and Free Markets

Digital Video Patent Thicket

2006-05-11T10:50:00.000-07:00

We've talked about the emerging threat of patents covering MPEG-4 recently, but today there is a fascinating discussion regarding MPEG-2 Patent Thickets and their impact on software DVD players, consumer choice, and vendor freedom over at The Technology Liberation Front, with the article coming to the logical conclusion that:

In any event, the best solution is to repeal software patents, which impede innovation in this and many other software categories.

This post was a followup to another fascinating discussion at TLF regarding Linux DVD players.

OnStartups Advice on Patents

2006-05-11T10:42:00.000-07:00

OnStartups, a blog providing "Practical Advice for Software Startups", recently published an article detailing the value of barriers to entry, and explaining why there really are only three types of these for a software startups. I'll leave you to read the article if you care to know what these are, but conspicuously missing from the list were patents:

If you’re thinking: “What about patents?”, my response is “what about them?” Patents are a strange kind of barrier to entry that actually requires that people acknowledge their existence and you have the resources to enforce them. For most startups, neither of these are true. How many software startup founders have you met that do an exhaustive patent check before locking themselves in a room and writing code? Not many.

This seems to fall squarely into lines with what most people have said for a long time: patents are really only valuable in the hands of companies with relatively deep pockets. Individual inventors, scientific researchers, and founders of startups are disadvantaged by their presence.

Seeking an inventive patent system

2006-05-10T07:17:00.000-07:00

The Philadelphia Enquirer provides a succinct summary of our current patent woes in today's opinion piece:

When fueled with adequate resources, these [patent] systems encourage the creation of inventions and drive economic growth.

At one time, the U.S. patent system was an example of this creative dynamic. Not anymore, as patent-related issues have become uncertain, [and] lengthy, legal proceedings rather than business or scientific discussions [determine the outcomes].

The commentary recommends several useful reforms, including a suggestion to

adopt a "probation" system, in which patents are granted but then subject to a rigorous review by interested third parties. Only an invention that passes the scrutiny of experts and competitors would be assigned a permanent patent, making it more robust.

This is similar in nature to premature expiration combined with incentives for encouraging applicants to find their own prior art, but is stated more concisely under the term "Patent Probation."

Constitutional Patent Crisis

2006-05-10T07:06:00.000-07:00

LawPundit's Andis Kaulins details the steady expansion of the government-granted 'rights' given to the intellectual monopoly regime from its narrowly imagined constitutional basis, enshrined by our founders over 200 years ago. His well-written opinion is backed up with many examples and is steeped in historical fact. Of course, that doesn't stop Patent Prospector's Gary Odom from refuting his arguments by claiming that the author enjoys "his rich fantasy life," but apparently not in "solitude," because Kaulins uses the word "we" to refer to himself. Unfortunately, that type of ad hominem attack and diversionary quibbles about speaking in the third person says a lot about the current level of debate that the IP-maximalist crowd engages in these days.

Updated to correct misquote.

Patent Doomsday

2006-05-09T09:40:00.000-07:00

John Soat describes a chilling patent doomsday scenario over at InformationWeek, and invites you to do the same.

Let us know what you come up with and we'll point to your blog entry or webpage. Or feel free to compose your scenario and attach as a comment to this post.

Ridiculous Patent: Paying Programmers

2006-05-09T09:10:00.000-07:00

A company called OpenLogic has come up with an innovative way to provide expert-level technical support for open source products, while also funding developers of those projects: pay participating developers for support activities. Unfortunately, IBM patented a very similar idea in 2003.

(Note of interest: IBM has agreed to be the guinea pig for the peer-review patent pilot program. No word on whether or not they are hoping to have more of their embarassing patent applications rejected. Either way, they get points for trying to help improve the process.)

Patent Peer Review

2006-05-09T09:08:00.000-07:00

The USPTO is kicking off their exploration of peer-reviewed patent applications with a pilot project. Peer reveiw has tremendous potential for increasing patent quality, but any process also has equally tremendous potential for abuse. Hopefully, they'll figure out how to make this work in a sensible way, and then can begin tackling other reform measures.

Free Software and Model Railroading Patents Update

2006-05-04T09:45:00.000-07:00

Pamela Jones of Groklaw has written a detailed summary of the continuing patent dispute between KAM Industries and Bob Jacobsen's open source JMRI software for controlling model railroads.

If you aren't familiar with the case, Bob Jacobsen is a model railroading hobbyist who wrote the JMRI software in his spare time and then gave it away for free. KAM Industries then sent him an invoice for over $200,000, claiming that he infringed their patents and that he owed them royalties.

The Invention of Television

2006-05-02T13:41:00.000-07:00

Pem Farnsworth's recent passing at her home in Utah provides a good opportunity to discuss one of the most important (or at least influential) inventions of our age: the Television. Pem was the wife of its inventor, Philo. Philo Farnsworth, incidentally, always claimed Pem was television's co-inventor.

If you are unfamiliar with Philo Farnsworth's story, you should acquaint yourself with it. It is a fascinating tale of a lone inventor coming up with a brilliant idea, pursuing it to its fruition, then watching, helplessly, as corporate America took full credit, leaving Farnsworth nearly destitute and unknown until after his death in 1971.

At the age of 15, Farnsworth had conceived his fundamental idea and sketched it out for his High School physics teacher. By the age of 20, he had applied for two patents covering the invention. At 22, he had a working camera and television set. It is Farnsworth's ideas that form the basis of all modern televisions.

Of course, many others were also pursuing television. In a society already very accustomed to both radio and movies, it was not a great leap to think of combining the two mediums by transmitting moving pictures along with sound. RCA, under the direction of David Sarnoff and technician Vladimir Zworykin, applied for their own patents and spread their own message about television. By the end of the 2nd World War, most Americans came to know RCA, Sarnoff, and Zworykin as the fathers of television. As Wired puts it, Sarnoff "and his lawyers did to Farnsworth what they'd done to those who had developed key radio inventions but had refused to cooperate with RCA: They launched a legal assault aimed at overturning the patents on appeal, tying up the inventor emotionally and financially for years. The challenges continued for much of the '30s. They slowed the development of television, delayed its introduction to the public, squandered Farnsworth's already thin resources, drove him to drink, and contributed to his development of a bleeding ulcer." Farnsworth battled RCA in court and was eventually vindicated by the USPTO as the sole inventor of television, but "time ran out. Farnsworth's key patents expired in 1947, just a few months before TV sales took off from 6,000 sets in use nationwide to tens of millions by the mid-1950s. RCA captured nearly 80 percent of the market, while Farnsworth was forced to sell the assets of his company."

The patent system couldn't help Farnsworth much then, and it wouldn't help him much now. A patent system will always end up benefitting moneyed interests more than it benefits individuals. Corporate control of the process has never been stronger, yet we see that the more things change, the more they stay the same. If it hadn't been for RCA's lawyering with bogus patents, Farnsworth may have been able to get his invention into consumers hands and reaped the benefits of his labor. Instead, he had to waste years pleading with the government in court against RCA's patent litigation. The patent system was ineffectual in protecting Farnsworth, even though he held valid patents.

Some would argue that the solution to problems like this is to make the patent system even stronger, and make it even easier for patent holders to assert their rights. Yet any such strengthening gives disproportionate muscle to the RCAs of the world, who have more money to throw behind their "patent rights" than any lone inventor ever will. The only way to level the playing field is to reduce the strength of patents, so that individuals like Farnsworth have a right to create equal to that of big corporations. As long as we continue to give patent holders big enough rocks, they will continue to use them to smash the windows of the innocent.

footnote: Farnsworth continued inventing during his later years, focusing on nuclear fusion. The Farnsworth-Hirsch Fusor was the first device to clearly demonstrate any fusion reactions at all, and is still in use today. But because of his prior experience with the patent system, Farnsworth refused to use patents to protect his discoveries, most of which became public domain. However, it is widely feared that some of these discoveries went to the grave with Farnsworth in 1971.

Why Patent Trolls Win

2006-05-01T20:18:00.000-07:00

If you negotiate with terrorists, it'll encourage more terrorism. This appears to be just as true of terrorists who try to destroy your innovation and/or livelihood as it is of terrorists who hijack airplanes and blow people up. RIM has just found out that their $600+ million settlement with patent terrorist NTP is going to cost them even more -- now other patent trolls see them as an easy target. Visto Corp of California, has filed a patent infringement lawsuit against RIM in the Eastern District of Texas, hoping that NTP's recently successful shakedown of RIM with illegitimate patent claims will result in a similar outcome for them.

Regardless of the merit of Visto's claims (RIM counters that not only do the patents not apply to RIM technology, but that the patents are invalid anyway), this also clearly demonstrates the great harm that software patents cause -- how many patents could RIM's products and services possibly trespass upon, and when does RIM cross the break-even point into negative profits and be forced to shutter their wildly popular products, as dozens of trolls each demand a section of the pie greater than the pie itself?

All this, from a patent system which is constitutionally mandated to promote the useful arts and sciences. Tell me again, how do litigation cases like those started by NTP and Visto promote anything at all resembling that?

Update: as a note of interest, Visto is the company that licensed NTP's patents near the end of the BlackBerry trial. In exchange, NTP became a minority stake-holder in Visto. So in a very real way, Visto's lawsuit is just NTP's lawsuit all over again, with a different set of overly broad and obvious patent claims

Against Monopoly

2006-04-28T13:26:00.000-07:00

David Levine has started a blog, focusing on some of the same topics as Right to Create. The posts are high quality and the perspectives will be familiar -- take a look (we've highlighted Levine's seminal work once or twice before).

Ridiculous Patent: Infinite Data Compression

2006-04-24T09:46:00.000-07:00

A ridiculous patent was recently brought to our attention by an alert reader. The patent claims to perform the impossible: compress data beyond the bounds that are clearly understood in information theory. Since the algorithm is not operative, it shouldn't have been granted a patent, as per the USPTO's own rules.

Specifically, the patent in question claims to compress any input data by at least one bit, and to do this with no loss of information. The patent also claims that this process can be applied recursively, making multiple passes over a file until the desired level of compression is reached. These claims imply that you could run the compression enough times to eventually reach a compressed data size of 1 bit, regardless of the input. Now, suppose I compress 10 different files in this way -- each of them compresses to a single '1' or '0' (a single bit). How, then, can we decompress a '1' into many different files? Where does that extra information come from? Obviously, this is a non-starter.

The sad fact is that anyone who has studied rudimentary computer science should immediately know this patent is impossible. Every introductory course in Information Theory makes this plain within the first week of lectures. But you don't have to be a computer scientist to understand the impossibility of these claims through simple logic. We keep hearing that USPTO examiners are experts in their fields, yet the patent office keeps churning out patent approvals just like this one. I'll leave it to you, gentle reader, to draw your own conclusions.

Perhaps, though, it really is time to "open up the examination process to those beyond the single PTO employee doing the examination, and ... let adversarial forces (competitors, existing players) use their own survival as an incentive to participate. And let's let the poor overworked patent examiner act more as a judge or referee in this activity (instead of adversary, advocate, AND judge)" (from "More Examiners = Better Patents?").

Previously Ridiculous:
The String Phone
Plotlines
Rice
Peanut Butter and Jelly Sandwich
Swinging
the Comb-over
Smiley Faces
Pop-up Ads
Anti-gravity Device (another non-operative, laws-of-physics-violating patent)
Serving Cereal
highlighting Numbers

The Case Against Patents

2006-04-21T09:25:00.000-07:00

Microcomputer pioneer Don Lancaster explains why individual inventors should stear clear of the patent system entirely when seeking their fortune, or even when seeking only to put food on the table to keep inventing.

A lot has changed since Lancaster first published this article. But then again, a lot has stayed the same -- patents still provide much stronger advantages for large companies than they do for inventors. One major change has emerged, however, and it starts with a 't' and ends with a 'roll'.

Model Railroading Patents Update

2006-04-20T09:45:00.000-07:00

I wanted to update you on the ongoing battle between Bob Jacobsen, the author of open source model railroading software, and KAM Industries, who sent him an invoice for $203,000 because he allegedly infringed their patent by giving away his software. Jacobsen's lawyer has posted the following:

Folks,

I am Mr. Jacobsen’s attorney. I heard about these postings through the grapevine, and wanted to add some comment.

First, I want to clarify one thing. Mr. Katzer did not sue Mr. Jacobsen. Because of the dispute over the patent rights, I filed a declaratory judgment action on Mr. Jacobsen’s behalf in U.S. District Court for the Northern District of California on March 13, 2006. Case number is 06-1905, for those who are interested. You can read the filings on PACER, the court's electronic filing system.

The purpose of the declaratory judgment action is to resolve a dispute over the patent rights. Mr. Katzer claims that Mr. Jacobsen is infringing his patent. Mr. Jacobsen says he is not infringing any valid and enforceable patent right that Mr. Katzer holds. Because of the increased damages for willful infringement, Mr. Jacobsen needs to have a determination of rights and responsibilities as it relates to Mr. Katzer’s patent. There are other causes of action that Mr. Jacobsen is pursuing against Mr. Katzer – antitrust (attempted monopolization), unfair competition, cybersquatting (on a JMRI trademark) and libel. We will address these issues and the issues relating to the declaratory judgment action in due course.

Second, I realize that many of you are angry at Mr. Katzer, and his attorney, Mr. Russell, for the letters they have sent to Mr. Jacobsen, and other actions they have taken against Mr. Jacobsen. I want to ask you to NOT harass them through calls, letters, faxes, emails, etc. It does NOT advance the case in Mr. Jacobsen’s favor. Here’s what will: As we stated in the lawsuit, there are numerous examples of prior art and inequitable conduct which affect patent rights. If you have more evidence, we’ll take it. The key date is prior art existing before June 24, 1998, and more importantly, prior art existing before June 24, 1997. The prior art that we are looking for is:
- A patent or printed publication that described the invention. Source can be from anywhere in the world.
- Evidence of public use, offer for sale, or sale in the United States. (If it’s from outside the U.S., please make a note and send it so we can follow up.)
- Evidence of another person inventing the same thing in the U.S. – the invention must not have been suppressed, concealed or abandoned.
- If the evidence is not the exact invention, then any information (in addition to the evidence) suggesting that the evidence could be combined with something else to successfully make the invention.

My homepage is www.vkhall.com – you can get my address through the website and send it to me. Please send it via mail. My e-mail service provider is not particularly reliable.

Regards,

Victoria K. Hall

P.S. Mr. Jacobsen contacted me through EFF, so the folks there know about this matter.

Please take Ms. Hall's advice, and don't waste time harassing KAM.

If you do feel spurred to action by these events (and we hope you do), in addition to prior art searches in this particular case, you can, as always, write a letter to your Senators and Congressional Representatives, and let them know how you feel about this case and the type of abuse that the patent system encourages, and/or reforms that you think might be useful. Remember, KAM's behavior is exactly what the patent system currently incentivizes patent holders to do. Let your elected officials know that you don't agree with this, and that you want to see legislation enacted that will prevent this type of thing in the future.

And you could also pitch in a couple of bucks to join the EFF.

Write Free Software, Pay $203,000 to Patent Holder

2006-04-19T13:52:00.000-07:00

Bob Jacobsen, a model railroad hobbyist, wrote a bunch of software to let you connect your computer to your model railroad and control trains with it. He chose to not only give the software away for free, but to make the source code available as well, so that the model railroading/hacker community could improve it and customize it to their liking.

And then KAM Industries, maker of commercial software that serves a similar role, tried asserting their 'patent rights' over doing just that.

When the author of the open source railroad controller asked for additional information about what claims were being infringed, KAM sent him an invoice for $203,000, claiming that the 7000 or so users of his software resulted in damages of at least $29/each.

KAM then sent a request to the author's academic sponsor (unrelated to his independent model railroad work), requesting copies of all his email and other correspondence. To most observers, these actions would seem to be nothing more than dirty tactics meant to rattle Jacobsen into compliance.

Several more threatening letters arrived. Finally, in January of this year, Jacobsen responded by pointing out that he didn't believe the KAM patent would withstand a challenge in court, noting that there was plenty of prior art, including his allegedly infringing software, which was available before KAM filed their patent application. He also pointed out that KAM's lawyers must have known this all along. In February, KAM's lawyers responded by claiming that they know of no invalidating prior art, and that they still viewed Jacobsen's work as infringing on their patent rights.

This is all still ongoing. It isn't clear that KAM will cease harassing Jacobsen, even with the knowledge that their patents are likely illegitimate.

But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.

The continuing saga (as well as all correspondence to date) can be followed at Jacobsen's website. Let's hope Jacobsen's software doesn't get shuttered by patent interests like RProxy did.

There are a number of useful reforms that could make the patent system a bit less abusive. If you want to do something about this type of absurdity, you can certainly try writing a letter to your Senators and Congressional Representatives. As always, feel free to cut and paste anything from this website when you compose your letter (a letter focusing on your favorite reform is a useful strategy) -- everything at Right to Create is in the public domain.

The Man Who Invented Wireless Email

2006-04-17T09:33:00.000-07:00

NTP vs. RIM is settled legally, but not historically. It turns out that NTP knew that their "inventions" had significant prior art, dating back to at least 1982, when Geoff Goodfellow committed the concept of wireless email to writing in an Arpanet mailing list. The NYTimes article is chock full of interesting quotes. Here is a sampling:

A high-school dropout, Mr. Goodfellow had his light-bulb moment in 1982, when he came up with the idea of sending electronic mail messages wirelessly to a portable device — like a BlackBerry. Only back then, there was no BlackBerry... he believed that everyone had forgotten that he had initially come up with the idea of wireless e-mail... Almost everyone had, that is, except for James H. Wallace Jr., a Washington lawyer for one of the companies involved in a patent dispute over Mr. Goodfellow's invention. Mr. Wallace represented NTP, a company aggressively defending its patents for wireless e-mail. He flew to Prague two days after first speaking to Mr. Goodfellow in early 2002 to introduce himself.

On a subsequent visit a year later, as Mr. Goodfellow remembers it, Mr. Wallace introduced him to a travel companion by saying: "Geoff's the inventor of wireless e-mail. My client patented some of its implementation workings."

DESPITE what might have been, Mr. Goodfellow says he has no regrets. His scorn for patents is widely shared by many innovators in Silicon Valley... "You don't patent the obvious," he said during a recent interview. "The way you compete is to build something that is faster, better, cheaper. You don't lock your ideas up in a patent and rest on your laurels."

Other intersting tidbits from the article include the fact that NTP hired Goodfellow as a consultant and put him under NDA, gagging him from speaking about his work during the lawsuit against RIM. He was asked to explain his inventions on a blackboard, while lawyers listening to his presentation were instructed not to take notes because they could be used against NTP in invalidating its patents. It looks like this smoking gun may dash any hopes NTP has of appealing the USPTO's preliminary invalidation of their 5 core patents.

"The moral of the story is that for a long time now the patent system has been misused," said Mitchell D. Kapor, founder of the Lotus Development Corporation, the software publisher, and an adviser to Mr. Goodfellow in the early 1990's. "If it had been properly used, NTP would never have been issued its patents, and they never would have had a basis to pursue a lawsuit against R.I.M."

Venture Capitalist: "Abolish Software Patents"

2006-04-14T10:21:00.000-07:00

A venture capitalist in New York is speaking out against patents, urging their abolishment:

My point is this. Innovation is an evolution. Everybody takes from everybody else. A truly competitve darwinian system where it's survival of the fittest may produce orders of magnitude more innovation than a system where someone gets to keep a lid on their invention (if in fact it is their invention which is a serious problem with our current system).

I think of the patent system in our country a bit like the tenure system in our academic institutions. It protects ideas and people that may not deserve to be protected and it allows for underperformance and it stifles creativity and energy.

Clearly we cannot abolish our system of intellectual property overnight. Many billions of dollars (including tens of millions of capital I manage) has been invested in companies that are using intellectual property protection as a competitive weapon. If there is going to be change, it must be gradual.

But I am encouraging all of us, the readers of this blog, other bloggers, academics, politicians, public policy wonks, and anyone else who cares about innovation in our country and the world at large to think hard about a world without patents and less intellectual property protection broadly speaking and what impact that would have on innovation and the flow of capital around innovation.

I believe we need a new way in the years to come. Our current approach is holding us back, not taking us forward.

Keep in mind, VC's are the guys funding innovative startups. They aren't puppets of large corporations, and they aren't crackpots.

Ridiculous Patent: Computer Solitaire

2006-04-12T21:55:00.000-07:00

Can one patent the idea of playing card games like solitaire on a computer? Apparently so.

Once you've got your patent and your government-enforced monopoly on computer solitaire, can you send out threatening cease and desist letters to infringers? Apparently so.

Patents Kill Open Source

2006-04-12T10:33:00.000-07:00

While working on his PhD Thesis in Computer Science, Andrew Tridgell (now famous for his work in creating SAMBA) grew discontent with waiting for whole files to be transferred over a dial-up connection when only a small update to the file had been made. So he invented the now-pervasive rsync algorithm and tool, which is currently in wide-use for remotely synchronizing data across machines. The tool is popular because it performs this function more efficiently than anything else available.

But there was a problem: someone else had independently invented a similar concept in 1994, and held a patent on the process. Through a "gentleman's agreement," the patent holder agreed not to pursue litigation against rsync.

In 1999, a new idea based on the rsync algorithm was ripe for implementation: RProxy. It held the promise of reducing web browser traffic by as much as 85%, alleviating a lot of frustration among dialup users of the time, as well as being useful today in much of the developing world. There was one problem: the 1994 patent. Because of this patent, RProxy never saw the light of day.

Perhaps this is no big loss. Perhaps RProxy would have had little, if any, impact. But we'll never know. The free market never got to decide. Maybe one day RProxy will be resurrected, but if it is to hope to avoid patent infringement claims, it must wait until at least 2014 to do so.

Do you know of other free (or proprietary) software that was killed by murky patent claims? We often hear of big companies like RIM and Microsoft running afoul of patent trolls, but the press seems less interested in the story of the little guy, whose innovations were smothered by the massive weight of hundreds of thousands of patents granted each year. What software don't we have today, because of the patent system?

Nathan Myhrvold: Champion of the Patent Troll

2006-04-10T09:49:00.000-07:00

Nathan Myhrvold published an editorial in the Wall Street Journal, defending the status quo of the patent system. No reform is needed, he claims, because the only real problem is that there is too much patent infringement by companies commercializing technology.

This is no surprise coming from Myhrvold -- he's the CEO of Intellectual Ventures, a patent holding firm (aka, a patent troll). Myhrvold (and the company) claim that they are an "invention company," conceiving and patenting "our own inventions in-house through a world-renowned staff of internal and external scientists and engineers." Yet the truth is that their strategy is to purchase shady patents from failed companies and paper inventors, and then use them in a extortion game against larger players -- fitting the definition of 'troll' to a tee. For evidence of that, look at how they bid up the Commerce One XML patent portfolio to nearly $15 million, before Novell purchased and released the patents openly. If Intellectual Ventures would have been successful in acquiring those patents (no matter how illegitimate they were), you can be sure they would now be engaged in a massive shakedown of the entire Internet industry, where XML is almost as pervasive as HTTP.

To avoid turning this into an ad hominem attack, let's take a look at what Myhrvold has to say:

Tech companies ... win by muscling their way to sufficient market share to become a de facto standard (some would say monopoly). Because patents don't figure in this business model, tech companies don't hold the patent system in high regard.

Patents don't figure into a business model centered around gaining monopoly control of a market? Come again? Patents are nothing more than a government-backed monopoly.

It gets better:

Many of the largest tech companies have a standing policy that engineers are not allowed to read patents or check whether their work infringes. Why bother to look, if you know you'll find lots of infringement? Besides the cost, it's a distraction that might hurt time to market. Their strategy is simple -- damn the torpedoes, full speed ahead.

Here, Myhrvold is either disingenuous, or extremely naive. Having spent 15 years in leadership at Microsoft, I'd rule out Myhrvold being naive, so that leaves us with disingenuous. Engineers aren't encouraged to look at patents because 1) engineers aren't lawyers, 2) engineers are paid to do engineering, not to wade through patent thicket legalese, 3) software patent quality is extremely low, so finding a patent claim which might somehow be broadly applied to an engineer's current work means virtually nothing, and 4) software patents have undefined or unclear borders, so determining whether infringement has or might occur cannot realistically be determined.

Myhrvold also talks about how, yes, Microsoft had to fight off some bad patents, but that it wasn't a big deal because Microsoft eventually won those cases in court. Nevermind that smaller startups don't have the huge pile of cash that Microsoft does, and that any such suit against them is likely to result in the smaller player folding, and never mind that Microsoft doesn't agree on this point -- Myhrvold will assert these 'facts' as truth, and expect you to be swayed by them. I don't think you, gentle reader, are that dumb. But apparently Nathan Myhrvold does.

More Examiners = Better Patents?

2006-04-06T09:35:00.000-07:00

This comes from the comment section of TCS Daily:

I don't think examiners will *ever* have enough time to sufficiently determine obviousness, utility, and search through all possible prior art, not matter how many you hire.

Expediency seems to be the major concern among those interested parties pushing for more examiners. If you speed up the patent process, this is sure to attract more patent applicants. More applicants means you need more examiners. And under the current funding structure, it also means more money for the USPTO. And thus we ever circle towards granting more patents, expanding the scope of what patents can cover, further impeding true innovation by constructing unnavigable patent thickets.

Instead, why can't we just admit that no single person is able to justly and fairly determine patentability, no matter how super genius the examiner might be. It is too large a task, and far too subjective in nature. The utility requirement alone is nearly impossible to determine without examining a working copy of the invention, yet we abandoned submitting working copies many decades ago. Prior art? Are you kidding? Even though I am personally considered an expert in one tiny little sliver of the field of computer security, I can't keep up with every paper or book that is published in that area, and I don't have 15 100-page applications sitting in my inbox waiting for me to 'grant' or 'reject'.

Instead of putting all this burden on the examiner and then sqwaking like banshees when bad patents get through, why don't we just realign incentives to produce the behaviour we desire?

For example, let's make the applicant do the prior art search. Anyone finding invalidating prior art after a patent issues gets a finders fee, which is funded by a fine levied on the applicant (who did an insufficient search before trying to acquire their 20-year monopoly).

For example, let's open up the examination process to those beyond the one PTO employee doing the examination, and let's go ahead and let adversarial forces (competitors, existing players) use their own survival as an incentive to participate. And let's let the poor overworked patent examiner act more as a judge or referee in this activity (instead of adversary, advocate, AND judge).

For example, let's stop funding the PTO with patent applicant and patent-holder dollars. At least let's not fund it exclusively that way, so that the office is accountable to me, the taxpayer, and to my elected officials, instead of just to patentees.

For example, let's make the filing of Statutory Invention Registrations FREE, to give inventors without monopoly interests and incentive to file SIRs (thus making prior art searches much easier, and blocking bad patents from being granted). If we could convince players that SIRs have all the defensive advantages of regular patents, without the negative amassing of patents for 'mutually assured destruction' gaming, this would also reduce the number of bad patents sought by big corporations, etc.

The system is set up to act as it now does. When the incentives are there to encourage entities to abuse them, what did we think would happen? No wonder patent trolling has become not only a well-established practice, but an entire business model -- we set up the rules and incentives for just this result.

How $19 in a Patent Troll's Hands Can Cost the Economy $9,000,000

2006-04-06T09:24:00.000-07:00

A selected quote from RIM's Jim Balsillie's congressional testimony:

In the NTP case, NTP mass- mailed letters to 47 companies, including RIM in January 2000. RIM responded with a letter to NTP asking for additional information about its patents. NTP claims never to have received the letter, and made no further effort to contact RIM until NTP filed suit. Nonetheless, RIM was found liable for willful infringement based on what RIM did or did not do after receiving NTP’s letter. The fact that the patent owner took no interest and forwarded no claim charts or otherwise showed there was an infringement simply did not matter. A recent case in the Court of Appeals for the Federal Circuit further suggests that, even if NTP had acknowledged receipt of RIM’s letter, it would have no obligation to respond to inquiries or to provide support for its claims of infringement in order for it to obtain enhanced damages for willfulness.

Thus, even though a patent owner does not deem the potential infringement worthy of investing time and money to do a proper infringement analysis and may never even bring a claim of infringement, the targeted defendant must do so or risk treble damages and the brand of “willful infringer.”

To illustrate the economic costs inherent in this bias towards patentees, one need only consider the NTP case. With 1920 claims in the NTP patents, each of the 47 companies would likely have to spend at least $200,000 for a legal opinion of invalidity and/or non- infringement. Thus, for about $19 in postage, a single patentee like NTP can require 47 companies to divert over $9 million from other industry endeavors to obtain legal opinions regarding NTP’s patents. Although it is currently rare for that many claims to be asserted, it is common for companies to receive dozens of such letters each year and to spend several hundreds of thousands or more each year on external legal opinions alone (not including the salaries and overhead for those that deal with these issues).

And, keep in mind, that's $9 million before any legal action even happens -- this is simply the cost of reacting to a cease-and-desist letter sent from a patent holder.

And, if you are a small company instead of a large one, it is doubtful you could ever justify spending $200,000 to respond to a single cease-and-desist.

The mafia never had a deal so sweet as that given to holders of shady patents.

Congressional Oversight Hearing on Patent Quality

2006-04-06T09:14:00.000-07:00

The Committee on the Judiciary held an oversight hearing yesterday on the topic of patent quality (you can read testimony or listen to the proceedings at their website). John Dudas, Director of the USPTO, outlined some of the internal reforms that they are trying to use to accomplish the goal of improving quality, but it is clear from the testimony of the other three witnesses that the job of patent reform is much bigger than the USPTO. James Balsillie, Chairman and Co-Chief Executive Officer, Research in Motion, Robert A. Stewart Director and Chief Patent Counsel of Americas, UBS AG, and Mark A. Lemley William H. Neukom Professor of Law, Stanford Law School all testified about some striking problems in the current system, and proposed many useful measures to alleviate these problems. If you want your eyes opened to the true costs of patent trolling, take a look at Balsillie's testimony.

While there are more drastic reforms that we'd love to see pushed through, the ideas brought to Congress's attention during these hearings would certainly help. Let's hope that our elected officials can draft some reform legislation with real teeth in it.

Are Ideas "Property?"

2006-04-04T09:03:00.000-07:00

During the eBay v. MercExchange Supreme Court hearing of last week, Justice Scalia remarked, "We're talking about a property right here and a property owner has the right to exclude others from using his property."

But are we really talking about a property right, when we are talking about government-granted monopolies over ideas? Thomas Jefferson would certainly have disagreed with Scalia, but I wanted to further explain why this is such an absurd notion.

Some intellectuals have defined "property" as "the fruits of labor." Under this definition, ideas might qualify as property (as long as one ignores the 'Eureka' theory of ideas, in which case ideas are not the pure fruit of one's labor). But this definition is insufficient, both historically and philosophically.

Historically, property rights only arise in the presence of scarcity and conflict. For example, during our ancestors' hunter-gatherer days, there was no concept of land as a property right. This is largely because land was not scarce, and there was little conflict over its use. As populations grew, different groups crowded each other for the best hunting grounds, and conflict due to scarcity occurred -- but these conflicts were communal, and were usually resolved with tribal battles or other types of violence. The concept of parcels of land owned by individuals did not arise until the introduction of agriculture, which gave rise to a new type of scarcity and conflict: competition for the most productive plots of land. The same is true of other types of property throughout history: scarcity and conflict resolution plays a key role in definition of property rights.

It extends naturally, then, that when there is no scarcity of a certain resource, there cannot be any conflict over that resource's use. And, since there is no conflict, property laws for that resource are unnecessary. No wars were fought in pre-industrial times over ownership of the air we breath, and no laws were needed to regulate atmospheric property rights. This is because air was once considered to be a nearly infinite resource.

Are ideas scarce? Can the fact that I once imagined and invented a method for folding a paper into the shape of a peanut somehow cause you not to think of the same (or very similar) idea? Of course not. Ideas are not exclusive, are not scarce, and conflict over their use does not naturally occur. It is only when governments grant exclusive rights to the use of an idea (via patents) that such conflict can arise, only through government regulation can scarcity of ideas be born. Ideas are not property.

But even worse, idea monopolies introduce a way for unconnected individuals to magically impede on the true property rights of one another. If I had been granted a patent on my hypothetical peanut-shaped paper folding technique, I would have the legal authority to restrict you from engaging in folding your paper, with your hands and the exertion of your labor, into the patented peanut shape. My government-invented paper-peanut patent 'property' right over an intangible idea would trespass on your natural physical property right over your hands, your energy, and your tangible paper. Such a conflict between imaginary idea property and real physical property is inevitable, and it is made worse by the fact that my idea monopoly extends not only against you, but against every single living soul who is subject to the patent regime's enforcement.

So, yes, Justice Scalia, we are talking about a property right here: we're talking about every individual's right to create using their own property in any way they see fit, as nature intended. We're talking about the government unreasonably interfering with that essential, natural right. And we're talking about how that is a bad deal for inventors, consumers, businesses, and society as a whole.

(for an expansion on these ideas, see Against Intellectual Property by Stephan Kinsella)

Ridiculous Patent: String-phone

2006-04-03T09:15:00.000-07:00

If you thought the patent wars over the invention of the telephone were silly, get a load of this patent:

Thankfully, the patent issued in 1980 and thus expired a couple of years ago. The world is now free to build primitive phones from string and paper cups again.
(via IP Funny)

Other ridiculous patents:
Plotlines
Rice
Peanut Butter and Jelly Sandwich
Swinging
the Comb-over
Smiley Faces
Pop-up Ads
Anti-gravity Device
Serving Cereal
highlighting Numbers

Funding the Patent Office, Corruptly

2006-03-31T07:37:00.000-08:00

From a Washington Monthly article of nearly a year ago:

The 1991 decision to make the PTO pay for itself, however, has created a series of perverse incentives that encourage the office to approve undeserving applications, and has made it easier for applicants to game the system.

Because each new application now brings in a $380 fee, the agency has an incentive to approve those patents sending a signal to the market to apply for more. Additionally, patent-holders pay annual maintenance fees for the first 12 years of a patent's life, meaning that each approved patent brings in a total of over $3,000 to the office. So every patent issued means a bigger budget for the patent office, and helps to guarantee that Congress will continue to look kindly on the office. “It's like telling the Treasury Department, go call the Bureau of Engraving and Printing and tell them that they're gonna get paid by how many twenties they print,” says David Martin, who runs M-CAM, an intellectual-property consulting firm based in Charlottesville, Va., and has testified frequently before Congress about the patent system.

Dan Ravicher, of the Public Patent Foundation, a non-profit legal organization, agrees. “At the agency level, if you want to increase the number of people applying for a patent you don't want a reputation for being tough on applications,” he says. “You want a reputation for being a rubberstamp. And that's pretty much what the patent office is now.” The agency denies that management encourages examiners to approve applications. But one examiner told The Washington Monthly that he had been told by a manager, “We're not the rejection office ... if you can't figure out what's going on, don't reject it.” Another examiner agrees: “That's where the push is coming [towards allowing more applications], because allowances bring maintenance fees.”

The USPTO hates fee diversion, yet funding the office in this way can only lead to ever spiraling corruption and an ever increasing number of faulty patents.

Related: Patent Fee Diversion

Submit an Article to Right to Create

2006-03-30T09:38:00.000-08:00

We'd love some help with content creation here at Right to Create, and are soliciting your participation.

Did you find an article or website that you'd like to point our readers to? Do you have an original essay or article you'd like to publish here? Submit it below, in the comment area of this entry, and it will be reviewed for front-page publishing (you may also email me directly).

Any of you who are particularly proficient at this will receive invitations to become full-fledged editors at this site (you'll likely need to demonstrate such proficiency by submitting at least two submissions), and will be able to post articles to the front page at will.

If you'd like to be credited, create a blogger account and use that to submit your article, or submit via email.

Keep in mind the mission of Right to Create when submitting (found at the top of the right-hand column), and try to tailor your commentary to that mission.

It is also helpful if you provide inline links to other material (including other articles at Right to Create) when submitting -- use the Google search bar in the right hand column to find related content.

Good luck, and thanks for participating!

Nano-thickets: Setting Back Innovation

2006-03-30T08:44:00.000-08:00

The burgeoning field of nanomedicine is already smothered with more than 5000 patent claims by different parties. In an article titled The Patent Land Grab in Nanotechnology Continues Unabated - Creating Problems Down the Road, Dr. Raj Bawa says:

"Patent thickets are considered to discourage and stifle innovation. Claims in such patent thickets have been characterized as often broad, overlapping and conflicting – a scenario ripe for massive patent litigation battles in the future." According to Bawa, nanomedicine start-ups may soon find themselves in patent disputes with large, established companies, as well as between themselves. In most of the patent battles the larger entity with the deeper pockets will rule the day even if the innovators are on the other side.

Breakthroughs in nanotechnology may experience significant set-backs because of these patent thickets, resulting in delayed deployment of technologies that can save and extend lives.

See also:
Why Drug Companies Don't Need Patents
On the Necessity of Drug Patents

Presumption of Validity

2006-03-29T13:53:00.000-08:00

Courts currently grant injunctions against an accused patent infringer nearly automatically. This is done because patents carry a presumption of validity. Every patent issued by the USPTO is given the same status. The courts treat them all equally, as if the quality of each patent were beyond question. Yet we know that patent quality varies wildly, and that the patent office isn't always very good at distinguishing what is/isn't obvious, novel, without prior art, etc.

Today's Supreme Court Hearing in the eBay vs. MercExchange case provides evidence that at least some of the Justices understand this discrepency. Chief Justice John Roberts described the MercExchange patent this way:

It's displaying pictures of your wares on a computer monitor and picking the ones you want. I might be able to do that.... It's not (like the patent describes) the internal combustion engine. It's very vague.

and Justice Stephen Breyer suggested that if eBay's "Buy it Now" feature could be patented, then

maybe A&P could patent its process for a supermarket.

Will any of this talk result in the removal of the presumption of validity? Opponents claim that taking such a step would result in pandemonium, with inventors getting a raw deal, rapists and murderers going free, and wild mountain gorillas declaring outright war on babies and little children. Personally, I think removing the presumption of validity would be a step in the right direction; let patents stand on their merits, not on the decisions of a single patent examiner in the PTO beauracracy.

Battling Editorials: Is the Patent System Broken?

2006-03-29T07:58:00.000-08:00

From The Reflector:

the patent system is fundamentally and frighteningly broken. The emphasis has moved from encouraging innovations -- the stated purpose of patents in the U.S. Constitution -- to encouraging greedy profiteers to extort both true innovators and others who could benefit from the technology. No process, observation or thought is safe from these so-called patent trolls.

We have a hard time disagreeing -- a broken window is a broken window, and calling it otherwise doesn't make the window-breaker innocent. Of course, others are still trying to laud the economic benefit of vandalism. A reader of the LA Times wrote this:

The patent system does not need an overhaul. The standard of business ethics needs a major overhaul. It is time that large companies are held accountable for stealing the property of others. Lawyers should not determine who can steal what. The patent office should include a government-funded court of appeals to protect the intellectual rights it grants against encroachers and thieves.

When we talk about physical property, of course theft shouldn't be allowed. And sure, lawyers shouldn't be the ones deciding this issue. But, alas, ideas aren't physical property, and never can be. Bad patents shouldn't be used by unscrupulous individuals and unethical patent holding firms as a means of extorting money from other business, both large and small, or as a way to stifle innovation and scientific research. Period.

Ridiculous Patent: Rice

2006-03-29T07:50:00.000-08:00

Yesterday, India and Pakistan thumbed their noses at the worldwide Intellectual Property Regime, agreeing to jointly patent basmati rice (India has a recent history of not bowing to external pressure to let the rest of the world walk all over it with dubious patent monopolies).

A U.S. firm had patented three varieties of long-grain Basmati rice in 1997, and sold rice under its brandnames, but the issue has irked South Asian farmers.

Science Friday Looks at Patents

2006-03-24T13:20:00.000-08:00

NPR's Science Friday dedicated the last segment of their program to patent law, its effect on science, and recent/upcoming Supreme Court cases. It is very nice to see these issues starting to enter the mainstream dialogue.

Wonderful Facts of Idea Monopoly

2006-03-23T08:11:00.000-08:00

Mother Jones collects a fascinating list of facts regarding the [mis]use of idea monopolies (patents, trademark, copyright):

In 1982, Motion Picture Association of America head Jack Valenti told Congress that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”
Microsoft UK held a contest for the best film on “intellectual property theft”; finalists had to sign away “all intellectual property rights” on “terms acceptable to Microsoft.”
By Passing the memorial Sonny Bono Copyright Extension Act, Congress added 20 years to copyrights. “I Got You Babe” now won’t enter the public domain until 2061.
For including a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered.
A French director had to pay $1,300 after a character in his film whistled the communist anthem, “The Internationale,” without permission.
Martin Luther King JR.’s estate charges academic authors $50 for each sentence of the “I Have a Dream” speech that they reprint.

Many more are listed at the linked article.

This Essay Breaks the Law

2006-03-19T20:19:00.000-08:00

A very well-written (and illegal) essay appeared in the New York Times Op/Ed section today. I can't tell you what it said, however, as doing so would infringe someone's patent. Apparently, even thinking about what is written there is illegal. If you want to break the law, you'll have to go read it yourself, and I'll have to hope that I don't get sued for providing the link. :)

Obstructing Invention

2006-03-18T20:38:00.000-08:00

I came across this quote at one enlightened software vendor's website:

It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith.

Who said it? The U.S. Supreme Court, in 1882.

Here we are, 124 years later. Do we grant monopolies for 'every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures?' Do we allow a 'class of speculative schemers' to 'make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country?'

The Court of 1882 must have spent the last 50 years constantly rolling over in their graves.

Your Patent Reform Ideas

2006-03-14T17:49:00.000-08:00

Yesterday, we highlighted some of the best ideas we've come across for meaningful patent reform. What ideas did we miss? Do you have an idea for fixing the patent system that you'd like to see enacted? Post it here in the comments section. We'll invite the best submittals to write a full-fledged posting on the front page in the coming weeks.

Reforms We Like

2006-03-13T07:32:00.000-08:00

We've pointed you to many useful patent system reforms in the past. Today, we collect a few of our favorites together:

Would you like to make a difference in this battle over the future of innovation and creation? Write to your Senators and Congressional Representatives. As always, feel free to cut & paste from any of the above articles (all content at Right to Create is donated to the public domain).

Independent Invention: The Light Bulb

2006-03-10T08:33:00.000-08:00

Who invented the light bulb? Thomas Edison? Are you sure? From willitsell (via IPBiz):

An English gentleman (Joseph Swan) patented a similar light bulb in England a few months before Edison and other light bulb development considerably predated that. In fact, on October 8, 1883 the US Patent Office ruled that Edison’s US Patent was invalid due to prior art by William Sawyer. To summarize the story so far, the “light bulb” idea was not Edison’s, successful development took considerable resources, and Edison’s patent was worthless well before it had a chance to expire.

Edison, Sawyer, and Swan were not the only ones pursuing improvements on the light bulb idea. But even with Edison eventually winning the U.S. patent, it didn't do him a whole lot of good:

But Edison’s light bulb must have been a smashing success right? After all, it cost him over $10,000–in 1879 dollars when cheap labor cost 7 cents an hour–and everybody must have wanted electric light bulbs right? Some $200,000 plus later the light bulb was commercialized and 3,144 light bulbs had been sold to 203 customers by sometime in 1882. By 1889, 10 years after the patent, there were only 710 customers. The problem was that electricity and its support infrastructure cost too much and, of course, had to be installed. Ten more years later, after electricity costs had come down, there were 3 million customers and all the basic light bulb patents had expired. In fact it took 46 years for electric lighting to reach just 25% of the US population.

Seven years, and more than $100,000 in litigation expenses after Edison’s patent was invalidated by the US Patent Office, on October 6, 1889, a judge ruled that the electric light improvement claim for "a filament of carbon of high resistance" was valid. Unfortunately further research exposed in A Streak of Luck by Robert Conot (1979), also shows that Edison and his attorneys hid significant information from the judge. They cut out the October 7-21, 1879 section of a notebook that the judge might have determined showed that they were simply extending Sawyer’s (or Swan’s) work with carbon "burners" or "rods" in an evacuated glass bulb.

The reality probably is that all Edison and his team did was change their terminology to "filament" and there is a high probability they got that from a presentation Mr. Swan made in the US after filing for his patent in England. In fact, Edison and his team did not find a commercially workable filament (bamboo) until more than 6 months after Edison filed the patent application. The weak and short lived (40-150 hours) carbon filament was laid to rest for good by the coming of the tungsten filament in 1906.

We love to beat a dead horse here at Right to Create, and our current system of ignoring the independent invention defense is certainly a rotten, stinking corpse.

Previous Independent Invention Coverage:
The Telephone
The Airplane
The Automobile

Broken Windows, Broken Patents

2006-03-07T09:34:00.000-08:00

Many of you, no doubt, are familiar with Bastiat's Parable of the Broken Window, in which is illustrated the fallacy of economic benefit caused by a small boy who throws a stone through the shopkeeper's window, causing money to be spent by the keeper to pay a glazier to replace the window, which the glazier then uses to buy bread and shoes, etc. The parable illustrates the fallacy of ignoring hidden costs by pointing out that the money the keeper had to spend on the window, if not broken, could have been applied directly to the breadmaker or shoemaker (or the coatmaker, or even the glazier), resulting in the keeper having both the window and other materials. Instead, the money now only buys him a window, those other possible transactions are no longer possible, and the boy has indeed caused economic harm to society as a whole.

What does this have to do with bad patents? The little boy in this case is he who seeks bad patents, whether a patent holding company, an independent inventor, or a large portfolio-stuffing corporation. Patent lawyers are represented by the glazier. A society which does not punish windowbreakers, or at least does not hold them accountable to pay for damages they cause, is a society that does itself great economic harm. Do we, by endorsing a broken patent system and allowing the USPTO to be hijacked by patent-holding interests, encourage window breaking?

When patents that clearly harm innovation, science, industry, and the freedom of creation are allowed to punish those who seek to bring inventions to the market, do we see the broken window for what it is?

What if the glazier were in league with the little boy, paying him a small amount for every window he breaks? Clearly, this would be seen as stealing, and punished as such. But what if the glazier, instead, pushed for laws that enshrined window-breaking as a beneficial activity, laws that actually encouraged window breaking? What if window breakers could get money directly from the shopkeeper when they broke his window, instead of from the glazier? Would we see through such a scheme?

Such is the current relationship between patent lawyers, patent holders, and our legal system. Overly-broad, obvious, and non-useful inventions are granted patent protection regularly. Patent trolls, who have no desire to ever create products from their patents, regularly shake-down others who do. We have no exceptions for independent invention, for scientific research, for private tinkering. We patent 'anything under the sun', even if it causes great harm to the useful arts and sciences. We allow software and business methods to be patented, even though both embody purely abstract ideas, and even though most of the rest of the world does not protect these pure ideas with patents. We've set up the USPTO to be incentivized to grant as many patents as possible. Our legal profession has every reason to prop up a broken system. And current patent-holders are self-interested to see that the broken system propogates, encouraging our legislators to 'reform' the system in ways that benefit only them.

The evidence is massive. When it comes to patents, we love window breakers.

Do we see it?

BlackBerry: Inspiring Patent Reform?

2006-03-06T07:46:00.000-08:00

We've posited before that a complete shutdown of the BlackBerry network through an injunction at the request of a troll whose 5 patents have all been found [pre-finally] invalid would be an incredible catalyst for patent reform, as millions of BlackBerry users march on Washington (so to speak). Unfortunately, RIM blinked, NTP got their extortion money, and we'll never know for certain if Judge Spencer really would have had the guts to issue such an injunction.

Perhaps some change will come of this experience after all, the Financial Times writes.

Independent Invention: The Telephone

2006-03-04T09:31:00.000-08:00

Who invented the telephone? Was it Alexander Graham Bell, Elisha Gray, Thomas Edison, or Antonio Meucci? How about all four, independently?

The problem with rewarding only the first inventor, or the first to file the invention, is that this is a completely arbitrary designation that is fundamentally unfair to the other independent inventors. It also illustrates problems of obviousness; if four distinct inventors could all arrive at the same invention, independently, within months or even a few short years of each other, doesn't that imply that the invention is 'obvious to one skilled in the art'?

The independent invention defense fixes this.

And of course, the telephone isn't the only example. We've talked in the past about the airplane, the automobile, and the digital computer. Add telephones into the mix and you have four of the most important inventions of our time, all independently invented by more than one person. Yet we award a monopoly over the invention to only one of the discoverers. This is fair, how?

Brits 'Get' Patent Problems

2006-03-03T08:35:00.000-08:00

The UK Patent Office appears to understand that the current patent system has severe flaws. Andrew Gowers, who was asked to lead an independent review into intellectual property law in the UK, claims that small firms are failed by patent law. He also claims that, "There are patent thickets, which are a complex web of patents which may stunt invention and discourage research and development."

Hooray for independent assessments! Perhaps if the US appointed an independent party to assess the patent system, we'd get further than non-legislative internal tweaks and pleading for more money to hire more examiners, and we'd actually get meaningful reform proposed in law.

Blaming Lawyers

2006-03-02T09:09:00.000-08:00

The law-blog-o-sphere (blawgosphere) is up in arms ([1] [2] [3] [4] [5] [6]) over an editorial in the Wall Street Journal that blames lawyers for some of our patent woes.

Okay, I'll say it: patent lawyers don't deserve all of the blame for our current mess. If I had to put accountability on one group's shoulders, I'd probably first blame Congress, for abdicating their responsibility of oversight and allowing the courts to invent patent law (a la State Street, etc.). But, the lawyers don't get off scot-free here either. They do make a lot of money from a broken system, and have a vested interest in keeping it broken. I know I'll catch some flak for saying it, but the more broken the patent system, the more we need lawyers to help us sort it out. And by not pushing for reforms that would eliminate such court-created patent categories as software and business method patents, attorneys become complicit in supporting a corrupt system (The EU recently rejected software patents, and in Asia, only Japan has them). Of course, software and business method patents are very profitable for attorneys, so they have nothing but disincentives to change the system. It's awfully difficult to have the courage to stand up against an oppressive regime, especially if that oppressive regime pays for your large home and nice car.

So, to my lawyer colleagues and fellow bloggers, I'd say this: if you want to ensure that editorials like the one in WSJ don't keep appearing, stand up on the right side of these issues and actively push for reform. It would help if you occasionally sought out volunteer pro-bono patent defense work for those individuals, researchers, and even small businesses who are harangued by unjust cease-and-desist letters. Or find a couple of patents that you view as obviously bad and donate your time to help out in invalidating them through the USPTO's re-exam process. Pick high-profile cases, publicize your activities, and help the common man see that you really are in this because of ideals, and not just for the money.

Perhaps you are already doing this, but we aren't hearing about it. If so, speak up!

But sadly, from the looks of most of your blogs, you've chosen to adopt 'ideals' that conveniently align with your own profit motives. Maybe those mores are convincing to you, but they aren't to the rest of us.

Software Startup? Offshore it

2006-02-28T08:13:00.000-08:00

CFO.com adds to our growing list of reasons that software patents are killing innovation and business opportunities in the U.S.:

the United States is nearly alone among global innovators in granting patents to new types of software. Just last year, the European Union rejected a bill that would have allowed software patents; in Asia, Japan is the only major tech power with a software patenting system.

"As it is right now, with software patents being awarded all over the place, it's becoming increasingly unattractive for innovators to set up their businesses here," DeMarco says. "As the number of lawsuits rise, other countries will benefit from our mistake."

Jobs Outsourced Because of US Patent Law

2006-02-27T09:09:00.000-08:00

Patently-O makes an important point about US Patent Law and outsourcing:

From a business perspective, this interpretation of the statute gives business executives another reason to send software jobs overseas. If the component was not exported from the U.S., there will be no damages under 271(f).

The Supreme Courty might be able to 'fix' this, but that outcome is unlikely as it would turn over quite a bit of precedent.

Are you excited at the prospect of U.S. software and biotech companies moving all their important research and development offshore? Would you like them to get rid of some of the highest-paying domestic jobs in order to shield themselves from our insane intellectual monopoly protectionism? If so, you should be a big fan of 35 U.S.C. 271.

CBS On Trolls

2006-02-27T09:02:00.000-08:00

CBS Evening News looks at the patent troll issue:

Professor Wu says, "patent trolls aren't evil or bad in themselves. They are just taking advantage of a system that is broken."

Indeed. From a game-theoretic perspective, patent trolls are not unethical but rather "rational," optimizing their strategy based on the legal rules of the game and on other players actions. Under such a perspective, it is not the players' fault, but rather a failing in the rules which allows parties to act in ways that are detrimental to the game, but advantageous to them individually.

No matter how you look at it, Wu is right about the system: it is broken.

Ridiculous Patent: Online Rich Media

2006-02-23T10:10:00.000-08:00

The USPTO has awarded Patent #7,000,180, which covers "all rich-media technology implementations including Flash, Flex, Java, AJAX and XAML and all device footprints which access rich-media Internet applications including desktops, mobile devices, set-top boxes and video game consoles." Slashdot points out that the patent was applied for 5 years after the release of the original Flash application.

Japanese Domestic Auto Industry Protectionism

2006-02-22T15:55:00.000-08:00

Earlier, I compared the Digital Millenium Copyright Act (DMCA) to criminalizing locksmithing as a protection racket for the automobile industry:

Even more draconian are the clauses of the DMCA which make it a crime to create or distribute tools that can circumvent DRM. If you do this, you will go to jail. It is akin to the government criminalizing the production of locksmith tools, and arresting all locksmiths. Under such a scheme, what would you do if you couldn't access your car because your key has been damaged or lost? According to the MPAA or RIAA, you'd simply buy a new car (or, at the least, a new door, doorframe, etc.) Why would such crazy laws ever be passed? And who would push for them? Well, if the entertainment industry controlled the automobile production/repair industries, they might claim that without such government protection, they wouldn't be able to produce as many cars and that a massive loss of production and mechanic jobs would occur. That is the exact argument they have used to this point in authoring, lobbying for, and defending the DMCA

Sounds ludicrous, right?

Wrong.

Japan has a protectionist system very similar to this. Cars older than 3 years are required to go through a very expensive inspection process each year. The cost of this process is such that it is actually cheaper to discard the old car (usually by shipping it to the Philipines) and buy a new one. The Japanese domestic electronics industry is now seeking similar protectionism. This type of protectionism is not very different from that afforded by acts such as the DMCA, or by overly permissive patent regimes.

USPTO Can't Hire Its Way Out

2006-02-22T07:49:00.000-08:00

In case you've been following our objections to Patent Office funding coming solely from patent holders (also covered at TechDirt and Just-N-Examiner), Peter Zura's report from a USPTO Town Hall meeting might be interesting. One of the slides from PTO said, "Production -- We Cannot Hire Our Way Out!!!"

Precisely. Allocating more money to expand the number of people working within a broken process does not fix the brokeness. And when the source of that extra money is patent stakeholders... well, would it be any surprise if those stakes end up getting driven further and further into the ground? If you'd like to voice your own views on this topic, Promote The Progress is encouraging you to write your Representative.

Copyright Terms are Too Long

2006-02-21T18:51:00.000-08:00

Mary-Beth Peters, the Register of Copyrights, admits on tape that,

We've certainly lengthened the term [of copyright] perhaps -- I won't even say perhaps -- too long a term. I think it is too long. I think that was probably a big mistake, but one that Congress can make.

Indeed. Even the Copyright Office can't explain how extending copyright terms past the death of the author and retroactively lengthening copyright terms for works that were already created in the past helped "promote the useful arts and sciences."

Ridiculous Patent: Serving Cereal

2006-02-17T11:58:00.000-08:00

Cereality, a specialized restaurant, holds a patent on “methods and system” of selling cereal, including “displaying and mixing competitively branded food products” and adding “a third portion of liquid.” It turns out that at about the same time that Cereality was opening its first store in Arizona, the same idea struck another innovator in Florida, who opened up 'Bowls.' But since Cereality holds the patent, Bowls might be forced to shut down, or at least stop 'infringing' on Cereality's patent claims, by, for example, selling pizza instead of cereal.

if the public doesn’t start agitating for reform, Americans are going to find themselves increasingly at the whim of the large corporations who own the ideas that form the foundation of the American economy.

Previously:
Striking Down Business Method Patents
Twin Problems

Patent Quality Datapoints

2006-02-16T08:48:00.000-08:00

What percentage of patents are granted by the USPTO? Looking at their tables for any given year, the percentage appears to be consistently around 50%, but this is misleading. Most patents don't issue in the same year they are applied for, and the USPTO is laboring under an ever-increasing backlog of applications, meaning that the data has to be analyzed across year boundaries.

Several researchers have tackled the problem, with estimates as high as 97% and as low as 62%, with most now agreeing that about 75% of patent applications are eventually granted.

Does the fact that 3 out of 4 patent applications eventually result in a patent grant surprise you? And what does this acceptance rate say about the USPTO's devotion to not granting bad patents? (Hint: unless you believe that 75% of patent applications are for useful, non-obvious ideas that don't have any invalidating prior art, you might be inclined to conclude that the USPTO is not as devoted to patent quality as they should be).

Another data point you may have heard about: the USPTO just granted its 7-millioneth patent. That's 7 million 20-year idea monopolies, every one of them beneficial to innovation, right? As an aside, it took almost 5 years, from the date of application, for this patent to issue.

One last data point: patent grant rates may have increased by 80% over the past 10 years.

All these numbers seem to indicate one thing: the USPTO needs more incentives to grant fewer, higher-quality patents. And one of the best ways to accomplish that may be to stop letting patent holders fund the patent office.

Property Rights and DRM

2006-02-15T10:14:00.000-08:00

Wikipedia defines Libertarianism as:

a political philosophy advocating the right of individuals to be free to do whatever they wish with their persons or property as long as they allow others the same liberty, by not initiating physical force, the threat of it, or fraud against others.

Would it surprise you, then, to know that some Libertarians are strong supporters of IP-maximalism, even to the point of arguing that there is no real difference between physical property and so-called 'intellectual' property? (why this position is absurd: here). We've found one in James DeLong, over at IPCentral, who has been arguing in favor of state-sponsored physical penalties for violating DRM (oftentimes called C.R.A.P.) using extremely weak strawmen. Tim Lee and Jim Harper over at the Technology Liberation Front have done a good job of debunking his arguments.

DeLong's confusion about the differences between physical property and authored creations leads him to some contradictory conclusions:

I certainly agree that it is nice for consumers to be able to space shift by playing DVDs on multiple devices. However, this is a product feature, not a moral imperative that justifies destroying society's ability to nurture creativity.

What's wrong with this? For starters, being able to copy data from one medium to another is not a product feature, it is a fundamental attribute of some property that I own: a computer. What is a computer, but a machine for copying bits from one location to another? Anyone familiar with even introductory computational theory will tell you that if you take away that capability, you no longer have a computer. Or, as Schneier eloquently puts it, "digital files cannot be made uncopyable, any more than water can be made not wet."

So here, then, is the contradiction: If I have built or purchased a machine that copies data, any government mandated restriction on my ability to use said machine results in a violation of my property rights. DRM doesn't actually prevent you, in most cases, from making copies -- it simply prevents those copies from being playable by colluding with the software that can decode and play the data. DRM, in itself, attempts to restrict the effectiveness of copying through technical means. By itself this is not terribly problematic; we can view DRM as a type of one-sided contract between the publisher and purchaser of DRM-crippled works (a contract, I might add, that the purchaser never explicitly agrees to). What is problematic is that the U.S. Federal Government wants to be involved in this private contract, by threatening the purchaser with huge fines and jail time if he attempts to use his computer to copy the media, even if such copying is entirely within the scope of fair use under copyright law, and even though it is entirely within my rights as an owner of a bit-copying computer.

Even more draconian are the clauses of the DMCA which make it a crime to create or distribute tools that can circumvent DRM. If you do this, you will go to jail. It is akin to the government criminalizing the production of locksmith tools, and arresting all locksmiths. Under such a scheme, what would you do if you couldn't access your car because your key has been damaged or lost? According to the MPAA or RIAA, you'd simply buy a new car (or, at the least, a new door, doorframe, etc.) Why would such crazy laws ever be passed? And who would push for them? Well, if the entertainment industry controlled the automobile production/repair industries, they might claim that without such government protection, they wouldn't be able to produce as many cars and that a massive loss of production and mechanic jobs would occur. That is the exact argument they have used to this point in authoring, lobbying for, and defending the DMCA.

Exporting "Trolling" to Japan

2006-02-14T07:50:00.000-08:00

For many years, the U.S. has fretted about its trade-deficit with Japan and other Asian nations. Today, it appears that we have at least one export that the Japanese are beginning to warm up to: patent trolling.

We've talked before about the recent embrace of trolling strategies by corporate America, and we've also mentioned that traditional [small] trolls have often targeted Japanese companies for litigation because of their general fear of the U.S. court system regarding patents. Doesn't it only make sense, then, that the victims of less-than-fair patent laws would eventually awake to the scheme, and learn to use it to their own advantage?

It seems clear where this is all headed if allowed to continue: a world where the most powerful and rich corporations are not the ones that actually make innovative products, but are instead the ones that are most adept at manipulating the system to carve out huge chunks of the 'ideascape' to claim as their own, and which then sit idly by until some other party does try to make a product whose functionality might broadly cross the unclear boundaries of their patents. What will such corporations look like? They'll look exactly like today's patent trolls, only larger, and their main body of employees will be lawyers.

Giant Trolls: Who Owns Your Home Videos?

2006-02-10T08:48:00.000-08:00

Most coverage of the 'patent troll' issue over the past few years has followed an identifiable pattern: little company with no products, and no intention to make any products, uses some overly-broad, ill-begotten patent as a bludgeon against a company that is trying to get an innovative product to consumers. So it was with NTP, Forgent, Acacia, Scientigo, Fraunhofer, and countless others.

Today, AT&T is threatening dozens of companies over the MPEG-4 'standard', claiming ownership of one of today's most widely used digital video formats. MPEG-4 is used in Windows Media, Apple Quicktime, DivX, and most other third-party software video players. It is also implemented in countless DVD players and several PVRs.

Much like GIF, JPEG and MP3 today, the patent trolls have shown corporate America how to rake in money. The formula is simple:

proselytize a standard format, and encourage its widespread use,
wait until it becomes entrenched in consumer software and products, and only then,
send out letters demanding that all implementors pay royalties.

The scary thing is, corporate America is learning. When Microsoft and AT&T start playing the shakedown game with their massive portfolios, it is time to fret and worry. The time for reform which frees ideas from such restrictive private ownership is now.

See also:
Who Owns Your Images
Microsoft's FAT Troll

Intellectual "Property?"

2006-02-09T08:42:00.000-08:00

Suppose you and I are stranded on an island, and each of us posesses a hatchet and a spot of forest from which to extract resources. Which one of us will use the hatchet to build shelter first? Does the speediest shelter-builder have the ability to exclude the slower from devising a method to build a shelter? Pretend for a moment that there is some advantage to excluding the other from building shelter (perhaps there is also a member of the opposite sex on the island which we both wish to compete for, for example, and having a monopoly on shelter is an attractive advantage). The only way the first builder can actually exclude the other is through use of excessive force -- using the hatchet to cut off the competitor's arms, physically restraining the other, physically removing all building material from the opponent's possession, murder, etc.

And here is where the argument for ideas as 'property' becomes absolutely absurd. If the first builder prevents the second from building, it can only be through depriving him of his physical property: his arms, his hatchet, his trees, his physical freedom, his life. So in order for intellectual property to be maintained, it must be more important than tangible, physical property -- it must be more real than the physical world itself.

Even after depriving the second builder of his ability to construct a shelter, the first builder cannot deprive him of the knowledge to build one, regardless of whether he discovered that knowledge on his own or witnessed it from the actions of the first. The idea exists in the head of the second builder, and no physical theft can deprive him of that thought short of brutal head-trauma. To claim that ideas can be owned by individuals in the same way that physical property can be owned is to claim that individuals can erase memories and knowledge from others.

Patents give ownership of ideas, as exercised in some form, to individuals and corporations. They exclude, by force, others from practicing the claims of the patent. This is the fundamental problem. Intellectual 'property' is in direct conflict with real, physical property. Labelling ideas as property necessarily diminishes property rights over real objects in the real world.

The same is true of the debate over copyright. If you own a pencil and paper, you own physical property. Copyright laws that restrict how you can use that pencil and paper necessarily conflict with the property rights naturally associated with that pencil and paper.

Calling ideas 'property' makes little sense. If you want to argue for giving ideas monopoly protection as an incentive for the act of thinking, fine. But let's call it like it is. Ideas are not private property, and the assertion that they can be maintained as such is ridiculous.

Patent law is a social contract. As long as patent law benefits society, it is reasonable to consider the use of patents as a practicality. But when patent law no longer benefits the society which has traded in their natural rights of creation and sacrificed their right to physical property in exchange, it is just as reasonable to consider fixing the law to bring about better balance.

Calling it "intellectual property" muddies the debate. A better term might be intellectual monopoly, or idea restriction, or C.R.A.P.

BlackBerry Workaround Available

2006-02-09T08:27:00.000-08:00

RIM has announced that the software workaround for avoiding NTP patent infringement (and thus an injunction) will be available shortly.

It is increasingly clear that NTP has wasted a large pile of money (both their own, RIM's, and taxpayer's) on this litigation shakedown attempt. And it is increasingly likely that they will not get a single dime in settlement from RIM, given that the USPTO has indicated it will eventually invalidate all five NTP patents at the core of the case, and that any injunction issued by the Judge in the case will have little effect on the operation of the BlackBerry network.

Previous coverage:
BlackBerry Apocalypse: Soon?
The Wright Brothers & the BlackBerry
BlackBerry Tiptoes
BlackBerry with a Gun Against its Head
Supreme Court to Reform Patent Law?

The Unclear Borders of Software Patents

2006-02-08T08:32:00.000-08:00

If you accept the concept of ideas as property (a fatally flawed, but commonly held concept), then you also accept the idea that property rights are meaningless without clearly indicated borders. If you own a plot of land, for instance, I can know how not to trespass on it by seeing your fence, posted signs, or consulting a map.

In the world of software patents, there are no clear borders. This is especially true when writing a single software application of any utility whatsoever; because of the borderless nature of software patents, such an application may unwittingly trespass dozens of software patents, and the authors of the application have no efficient way of determining that they are trespassing until they are served with a cease-and-desist letter or notified of litigation proceeding against them for infringement.

Slate has this to say on the subject:

The "measurement costs" of software's boundaries—defining where one algorithm begins and another ends—are inescapably high.

This point about measurement costs is borne out in practice. As anyone in the industry will tell you, and as Ronald Mann has documented, most programmers or firms cannot figure out whether they're infringing software patents or not and simply always assume they are. The point is simple: Property without discernable borders brings all the costs and none of the benefits.

The article also delves into judicial activism, revealing the little-known fact that software and business method patents came about not because Congress authorized them, but because the Court of Appeals of the Federal Circuit decided to allow them in the 1980s and 90s.

In this debate it must be remembered that the regime of easy patenting of software is not natural law but an experiment—a judicial flight of fancy in an area of difficult economic policy. To remain healthy, the U.S. legal system should experiment, but it also needs to recognize when its experiments have failed. Both Congress and the Supreme Court have a chance to do something about the problem this year. The rise of the patent trolls is, in this sense, telling us something—that it may be time to end a system that is doing no one any favors.

Patent Fee Diversion

2006-02-07T07:28:00.000-08:00

The U.S. Federal government has, for years, put its hands into the Patent Office's coffers, diverting funds to other endeavors. This is because the USPTO is one of the few government agencies that turn a profit.

Critics have pointed to this appropriation of patent money for projects unrelated to patents as one of the problems with the current system. Because the money is getting sucked away, they say, the patent office can't hire enough examiners and can't keep up with the workload. To remedy this, recent reforms have proposed putting a stop to the diversion of profit away from the Patent Office, and Bush's new budget calls for the office to keep all the fees that it earns.

But to me, this seems like it has the potential to make things even worse, and not only for the citizenry of this country. It also spells disaster for the Patent Office. As I mentioned yesterday, misaligned incentives are central to the problems at the USPTO. The goal of infusing the USPTO with more money, according to sources, is to help the Patent Office "become more efficient at approving patents." More efficient at approving patents? How about more efficient at denying bad patent applications? How about more efficient at re-examining ill-granted patents? How about more thorough at searching for prior art?

The problem with letting the USPTO profit from granting patents is that it provides an incentive to, well, grant more patents -- regardless of patent quality. Now, I know that the people who work at and run the USPTO are not evil, and that the vast majority are probably as concerned with improving patent quality as anyone. But a system that provides incentives for certain behaviors is bound to produce those behaviors. If you wanted the Patent Office to keep granting patents willy-nilly, largely ignoring the issue of patent quality, the best incentive you could give them is increased profits from patent grants.

Here's an alternative proposal: The USPTO keeps none of the funds it collects from granting patents, but does get to keep not only 100% of the fees it collects when it rejects a patent or performs a re-examination, but earns an extra bonus from the federal government when it does so (perhaps 100 times or 1000 times the fee amount).

It sounds radical, I know, and perhaps it goes too far. But it illustrates an important principle: if the USPTO is beholden to the government for its funding, it must answer to the government for its performance, which means that it must answer ultimately to us, its citizens. If, on the other hand, the USPTO relies only on funding from patent applicants, it is beholden to no one but patent holders, and becomes the poster-child example of regulatory capture.

Which one of those scenarios does today's USPTO more closely approximate? I'll give you a hint: it rhymes with "circulatory rapture."

Reform: Fine Patent Holders for Valid Prior Art

2006-02-05T20:06:00.000-08:00

Incentives drive behavior, especially institutionally. What incentives does the US Patent Office provide for third parties to search for prior art? None, beside self-interest in invalidating patents. Is the Patent Office incentivized internally to search for prior art post-grant? No.

Here's an idea: when prior art is found that invalidates any claim on a patent, the Patent Office could require a significant fee from the patent holder. A large chunk of this fee is then turned over to the submitter of the prior art, as a bounty. The rest is kept by the Patent Office to cover the cost of the re-examination, plus a little extra to reward the examiner. If the patent holder refuses to pay the fee, the entire patent is invalidated. If the entire patent were invalidated by the prior art anyway, a freeze is placed on all other patents held by the patentee, essentially causing a temporary moratorium on the power of the patentee to enforce any of its patents.

Such a reform (or one very much like it), would provide three incentives that are currently lacking:

The patent applicant would be more incentivized to do a really thorough job of searching for prior art before applying, since any holes here could come back to be very costly.
Third parties would have an economic incentive to search for prior art, at no cost to the USPTO.
The USPTO would have an internal, economic incentive to perform more re-examinations (to counter-balance the current incentive to let patents stand for 20 years so that renewal fees keep coming in annually).

Related Reform:
The Independent Invention Defense
Patent Reform via Open Source
Two-tiered Patents: Weaken Presumption of Validity
Internal USPTO Reform
Premature Patent Expiration
Patent Commons
See also this poster's ideas about fines for prior art

How to Litigate Like a Patent Troll

2006-02-03T07:28:00.000-08:00

Apparently, your success in extorting royalties over your shaky patents depends largely on the jurisdiction in which you file lawsuits:

In one federal court in East Texas, plaintiffs have such an easy time winning patent-infringement lawsuits against big-tech companies that defendants often choose to settle rather than fight.

Here's an interesting fact from the article: the average cost of defending oneself against a patent lawsuit, according to the American Intellectual Property Law Association, is 2.8 million dollars. No wonder companies, both large and small, often roll over when threatened by a troll, even if that troll's patents are obviously invalid.

Previously:
How To Become a Patent Troll

Re-exam of Forgent's JPEG Patent Granted

2006-02-02T19:16:00.000-08:00

Forgent's JPEG patent may be on the ropes. The USPTO has granted a re-examination requested by PubPat. I'll direct you to Peter Zura for more commentary on the good news.

Previously:
Who Owns Your Images?
How to Become a Patent Troll

Yet Another NTP Patent Defeat

2006-02-02T07:47:00.000-08:00

This is all over the news today: NTP's fifth patent received a non-final rejection from the USPTO. This brings the total to 5 (out of 5) patents at the center of the BlackBerry case which have received this designation from the USPTO. Unfortunately, even though the Patent Office will likely invalidate all five patents, the court has indicated that it will issue an injunction against the device or force RIM into a settlement before the PTO has a chance to finish their repentance for issuing these ill-conceived patents in the first place.

Previously:
BlackBerry Apocalypse: Soon?
The Wright Brothers & the BlackBerry
BlackBerry Tiptoes
BlackBerry with a Gun Against its Head
Supreme Court to Reform Patent Law?

IEEE: We Want a New Type of Patent

2006-02-01T07:39:00.000-08:00

The IEEE Spectrum (Institute of Electrical and Electronics Engineers) is running an interesting patent reform article written by Lee A. Hollaar, a professor in the School of Computing at the University of Utah, where he teaches networking and computer and intellectual property law. Hollaar is also a registered patent agent and is the former chair of IEEE-USA's Intellectual Property Committee.

Hollaar proposes a new type of patent to address three problems with the patent system for the fast-moving high-tech industry: 1) it takes too long to get a patent, 2) patent terms of 20-years are often excessive for technologies that are replaced in a matter of a few short years, and 3) patent quality is harmed by insufficient prior art searches.

The new "limited patent" would grant protection from the moment the technology is first used in commerce, would last 4 years from that date, and instead of requiring non-obviousness, would require simply that the product be 'novel.' The novelty requirement would not be determined -- the limited patent would be granted as long as the paperwork was in order. Novelty could be challenged at any point by someone submitting prior art and paying a small fee. The limited patent would thus lose the presumption of validity, but give the inventor some protection while either pursuing a full patent or filing new limited patents on further innovations. The proposed limited patent would also allow a form of the independent invention defense, allowing those parties that could prove they had implemented some of the claims prior to grant of the limited patent the right to continue (but still excluding all others from practicing those claims).

Fees for limited patents would be significantly less than for a full patent application, since they dispense with examination and require very little work from the patent office. Limited patents help improve the traditional examination process by helping to build the prior art database.

The best part about this proposed reform is that it doesn't directly disrupt those who favor keeping the current system as-is; an inventor would be free to choose which type of protection they wanted to apply for, applying for either a traditional patent or a limited patent.

Related:
Premature Patent Expiration
Reduce the Fees for Statutory Invention Registration
The Independent Invention Defense

How to Become a Patent Troll

2006-01-31T12:36:00.000-08:00

An article at The Age chronicles Forgent's JPEG patent lawsuits, (unintentionally) laying out a simple 4-step plan to convert your company into a patent troll:

Step 1: After failing in the marketplace, rummage around and see if you can find or obtain a dodgy patent:

Forgent's previous incarnation, a videoconferencing company called VTEL, fell on hard times in the late 1990s... The company lost $US6.1 million in fiscal 2002.

Cash-crunched, [Forgent] began rummaging through the company closets - and found a treasure.

Inventors working for Compression Labs, a company that VTEL bought, had registered for patents on a process that Forgent now claims is used in JPEG compression.

Step 2: Bomb Japan:

Mr Snyder first aimed his guns at Japan, a less litigious place than the United States, in hopes of setting a precedent. Forgent sent letters demanding a one-time licence fee to cover alleged past and future infringement. The strategy worked. Staying out of court, Sanyo paid $US15 million and Sony more than $16 million in fiscal 2002.

Step 3: Use Japanese companies' willingness to capitulate as leverage against US companies:

Emboldened, Mr Snyder moved on to the US market, going after more than 1000 companies that have used the JPEG in their products.

Step 4: Reinvest proceeds of settlements into more litigation, against bigger and bigger fish:

Forgent was left with two businesses: the $3 million NetSimplicity, which offers meeting-planning software, and the lawsuit business. That means that for Forgent, licensing is the name of the game. Patent law allows a company to force a violator to stop producing the item in question and pay compensatory damages, which can be tripled in the case of willful infringement.

In Step 2 & 3, you may subsitute other vulnerable and litigation-adverse groups in place of Japan. For example, Acacia has created a very profitable patent trolling venture by targetting first pornographers, who are also very likely to agree to terms keeping them out of court.

In Step 1, I used the term 'dodgy' to describe the Forgent patent. Perhaps that is too kind a term:

"I believe that the patent is invalid," says Dan Ravicher, the [Public Patent] Foundation's executive director, and it is "causing substantial public harm" by adding extra costs to an already taxed system for inventions and by threatening the JPEG standard that is now part of the public domain.

Some critics even question whether software patents like Forgent's ought to exist. "Software is a thought process," says Tom DeMarco, a fellow at the Cutter Business Technology Council, an IT consultancy. "To patent it is comparable to patenting induction or deduction." The European Union, for example, does not grant software patents.

Even more damning is the fact that US Patent Law is beginning to force innovative companies to flee our borders, moving off-shore to protect themselves from silly patent thickets such as those laid by Forgent. We are experiencing an exodus of jobs and revenue, thanks to our patent system:

The number of patents granted has exploded to 187,170 in 2004, up from 66,176 in 1980. There has been a similar explosion in lawsuits, which usually cost at least $2 million to defend if they go to trial. "Now you can make the case that it's driving innovation offshore," says Mr DeMarco. "If you want to start a new software company that does something imaginative and wonderful, you have every incentive to start that company in Slovenia or China or a place that doesn't have these rules."

Patent Infringement Exemption for Researchers?

2006-01-30T08:13:00.000-08:00

As part of an Education and Research package in the newly proposed Protecting America's Competitive Edge (PACE) Act, Congress is proposing several patent reform measures, including:

Congress should implement comprehensive patent reform that--
(A) establishes a first-inventor-to-file system;
(B) institutes an open review process following the grant of a patent;
(C) encourages research uses of patented inventions by shielding researchers from infringement liability; and
(D) reduces barriers to innovation in specific industries with specialized patent needs.

The first two of these suggestions have been floated before, and are likely to be a part of almost any proposed reform package. The last two are truly interesting, and indicate that Congress has heard some of our complaints.

Specifically, we know that patents have had an extremely chilling effect on science, with 40% of research adversely affected by patent monopolies, and roughly 1 out of every 5 research projects being canceled outright. To those of you who wrote to your representatives about this startling fact, you can take item (C) from the above list as proof that, once in a while, our elected officials do listen to us.

Item (D) is also of interest, as it hints that Congress may be beginning to understand that not all intellectual monopoly is equal, and in particular, that there is now a general recognition that software patents and business method patents should be treated much differently that patents on physical devices. Once again, if you've written to your representatives regarding this issue, take heart.

If you have not yet written, today is a good day to send a nice letter to your Senators and Congressional Representatives, urging them to support and/or draft legislation that shields researchers from infringement claims, and which improves the fairness of the system with regard to overly broad and excessively long-lived patent monopolies granted for algorithms and business methods. As always, feel free to cut & paste any text from any article here at Right to Create in composing your letters.

And, if you have written in the past, please do so again, today. Nothing but continual pressure will bring about the meaningful reform that we truly need. Without your letters, the only ones pushing on our officials will be the expensive lobbyists paid by corporate America.

Emoticons: the New Wave of Innovation

2006-01-27T08:21:00.000-08:00

Not to be left behind in the gold rush to gain patents on smiley faces, Cingular has applied for patent #6,990,452, which describes the genius invention of putting an emoticon into a stream of text via an 'emoticon button.' There are some other great innovations here that would never have been invented without the incentive of a 20-year monopoly, such as using the emoticon to influence an animated face that delivers the message, and allowing the user to select the 'amplitude' of the emoticon.

Cingular now joins the illustrious ranks of other smiley-face patent holders, including Microsoft, AT&T, and Jonathan O. Nelson. And, these guys aren't alone -- it seems that a lot of patent applicants think that there is tremendous value in submitting paperwork to the USPTO that could lead to a grant of monopoly power over very basic and obvious applications of smiley-faces in communications systems.

Thanks to goombah99 for pointing out some of the above links.

Ridiculous Patent: Popup Ads

2006-01-26T08:29:00.000-08:00

Does the idea of popping up an advertisement in a separate browser window deserve patent protection? Both the USPTO and Brian Shuster think so.

The good news is that we all hate popup ads, so employing them is detrimental anyway. The bad news is that if you want to use a popup ad anyway, you need to pay Brian Shuster, or wait 20 years for the patent to expire.

Ridiculous Trademark: "Cousteau"

2006-01-25T07:43:00.000-08:00

Shortly after Jacques Cousteau's first wife passed away in 1990, he revealed to his family that he had been having a 16-year affair with Francine, a woman 40-years his junior whom he met on a Concorde jet while she was working as an air hostess. He openly admitted to fathering two children by her. The two married six months later.

While his first wife, Simone, was alive, Cousteau shared ownership of his assets with her, including the famous ship Calypso. Cousteau's sons, most prominently Jean-Michel, spent many years working with his father in his oceanographic explorations, helping to build the prestige of Jacques' work and the Cousteau name.

Shortly after Jacques passed away in 1997, Francine claimed to represent her late husband's legacy and work, which the children of Cousteau contested. The courts eventually found in favor of Francine, awarding her sole custody of the Cousteau trademark in oceanographic endeavors.

Today, Jean-Michel and his siblings cannot use their own last name in conjunction with oceanographic pursuits.

BlackBerry Apocalypse: Soon?

2006-01-23T11:16:00.000-08:00

The Supreme Court has refused to hear RIM's arguments regarding jurisdication of their BlackBerry service. Judge Spencer is now free to issue an injunction to shutter the wireless email service.

If RIM's BlackBerry is shut down, thousands of emergency responders will lose an important tool in their communication arsenal. Thousands of businesses will lose a tool that has become essential to their revenue.

You say you want a revolution? Well, it will be interesting to see how the masses respond if the trial judge carries through with his clearly stated intentions.

Previous coverage:
The Wright Brothers & the BlackBerry
BlackBerry Tiptoes
BlackBerry with a Gun Against its Head
Supreme Court to Reform Patent Law?

Twin Problems, Twin Articles

2006-01-20T07:18:00.000-08:00

A pair of good reads today. The first, Patent System Stifling Competition contains a good summary of the problems surrounding business method patents, including a review of the cereal restaurant patent battles, and concludes:

While groups like the Electronic Frontier Foundation, FreeCulture and Downhill Battle are growing, intellectual property issues still don't command the same kind of attention as other progressive mainstays. But if the public doesn't start agitating for reform, Americans are going to find themselves increasingly at the whim of the large corporations who own the ideas that form the foundation of the American economy.

The second, Patently Absurd? Report Calls for Patent System Revamp, focuses on that other mainstay of patent abuse, software patents.

"There have been some really strange patents for software processes that have been common practices for a long time," Orr says, citing the footnote example and others like it. "In our litigious society, this makes business very difficult. As process patents become more popular, the number of nonsense patents grows daily."

The article finishes much like the first, with a call-to-arms:

"In the next decade, the intellectual property regimes for the 21st century are apt to be set," Orr says. "We should not be bystanders to that process."

How Not to Argue For Software Patents

2006-01-18T09:05:00.000-08:00

Tim Lee over at The Technology Liberation Front has a nice article on SAP's arguments for introducing software patents in Europe, reasoning that when they were a young innovative company they didn't need patent monopolies, but now that they are a "fat, lazy incumbent, they’re discovering the joys of using patent law as a club against their more innovative competitors."

On the Necessity of Drug Patents

2006-01-18T07:31:00.000-08:00

Everyone (except for the most unreasonable of intellectual monopolists) agrees that patent quality is a glaring problem in the software patent and business method patent domains, but most don't realize that patent quality is almost as bad in most traditional patent areas, such as the drug industry.

Generic pharmaceutical companies win 75% of their lawsuits against brand-name drug makers -- a striking indication that the big pharmaceuticals are just as likely to apply for and recieve low-quality patents in order to obtain unjust monopolies over drugs that don't deserve patent protection.

Of course, this fact is not lost on the big pharmaceuticals. In an attempt to bolster their monopoly protection, brand-name pharmaceuticals are now agreeing to shorten their patent terms by entering into agreements with generic pharmaceuticals which ban the production of knockoffs for a period of time less than the 20-year patent monopoly. The FTC worries that these agreements amount to payola for the generics companies -- free money for sitting on their hands and allowing the brand-names to charge monopoly prices for dubious 'inventions.'

We've previously argued that the case for patent necessity in the drug industry is actually quite weak.

GPLv3

2006-01-16T19:44:00.000-08:00

Important news in the free software world today. The Free Software Foundation released a draft of version 3 of the GNU Public License, the cornerstone of much free open source software. The chief change in this version of the software license is in its dealings with those who would use patents against free software:

It is changes in law, not computer technology, that pose the principal challenges to the free software community. Chief among these changes has been the unwise and ill-considered application of patent law to software. Software patents threaten every free software project, just as they threaten proprietary software and custom software. Any program can be destroyed or crippled by a software patent belonging to someone who has no other connection to the program.

We were among the few to recognize the gravity of the software patent problem in 1991. At that time, however, the problem seemed to be confined to one country, the United States. Today the situation is very different. Most countries have followed the direction of the United States, permitting software to be patented to at least some degree. This worldwide shift in patent law has brought about immense harm and injustice. In 1991 GPLv2 was unique in raising a defense against the problem of software patents, in its section 7. It is indicative of the scale of this problem that, by the end of the decade, commentators were criticizing the GPL for doing too little to combat patents.

A program's own license cannot protect it from the threat of software patents. The only real solution to the problem of software patents is to abolish them. However, we can protect against attempts by some participants in a program's development to use patents against other participants. GPLv3 provides an explicit patent license covering any patents held by the program's developers, replacing the implicit license on which GPLv2 relies. GPLv3 also implements a narrow scheme of patent retaliation against those who undertake this precise form of aggression.

Specifically,

We have therefore decided to make the patent license grant explicit in GPLv3. Under section 11, a redistributor of a GPL'd work automatically grants a nonexclusive, royalty-free and worldwide license for any patent claims held by the redistributor, if those claims would be infringed by the work or a reasonably contemplated use of the work.

The patent license is granted both to recipients of the redistributed work and to any other users who have received any version of the work. Section 11 therefore ensures that downstream users of GPL'd code and works derived from GPL'd code are protected from the threat of patent infringement allegations made by upstream distributors, regardless of which country's laws are held to apply to any particular aspect of the distribution or licensing of the GPL'd code.

A redistributor of GPL'd code may benefit from a patent license that has been granted by a third party, where the third party otherwise could bring a patent infringement lawsuit against the redistributor based on the distribution or other use of the code. In such a case, downstream users of the redistributed code generally remain vulnerable to the applicable patent claims of the third party. This threatens to defeat the purposes of the GPL, for the third party could prevent any downstream users from exercising the freedoms that the license seeks to guarantee.

The second paragraph of section 11 addresses this problem by requiring the redistributor to act to shield downstream users from these patent claims. The requirement applies only to those redistributors who distribute knowingly relying on a patent license. Many companies enter into blanket patent cross-licensing agreements. With respect to some such agreements, it would not be reasonable to expect a company to know that a particular patent license covered by the agreement, but not specifically mentioned in it, protects the company's distribution of GPL'd code.

So, there you have it. A software company that distributes GPLv3 software explicitly licenses, royalty-free, any patents that may cover that software to all downstream users and developers. The number of companies that now rely on open source software as part of their business model is now huge: IBM, HP, Sun, Novell, and even Microsoft -- not to mention folks such as SCO. If they don't want to give royalty-free licenses away for patents covering open source software, their choice is clear: they must cease distribution of that free software.

Ridiculous Patent: Smiley Faces

2006-01-13T09:51:00.000-08:00

Microsoft has applied for a patent for creating and transmitting emoticons during "real-time communication," as in while the user is instant-messaging. Never mind that popular non-Microsoft instant messaging software has been doing this for a number of years -- the idea is so obvious that even someone not familiar at all with instant-messaging should immediately see the absurdity in these claims.

Patent Expires, Innovation Flourishes

2006-01-11T14:21:00.000-08:00

Patent Baristas reports on the expiration of the PCR (polymerase chain reaction) Patent, an event which is projected to spur growth and lead to new technologies in the field, as well as benefit academic research (which leads to between 55%-90% of all basic drug development).

This is an oftentold story: a patent monopoly ends, innovation flourishes. It happened with the steam engine. It happened with the RSA encryption patent. It happened with the aeronautics industry. What better evidence is there that in general, patents slow down progress and innovation, instead of promoting it?

FAT Filesystem: Patent Upheld

2006-01-11T07:30:00.000-08:00

Microsoft announced yesterday that the USPTO concluded that two patents covering their FAT filesystem are valid. This follows a previous pre-final ruling invalidating the patents.

The implications for this ruling are far-reaching. Most USB devices utilize the FAT filesystem as a standard for storing data. Linux and other free operating systems implement the FAT filesystem for compatibility with Windows and to read devices such as digital cameras and thumb-drives.

US Patent 5,579,517 was not issued to Microsoft until 1996 (despite prior art dating to at least 1988). Unless a court overturns the re-examination, Microsoft can collect royalties from all USB storage device makers until 2016, and, more importantly, can exclude Linux, BSD, et. al from including support for the FAT filesystem, rendering them largely useless for accessing such commonly used devices as digital cameras and other USB-attached storage. The patents also threaten the Samba file server, widely adopted as a free competitor to Microsoft's offerings.

Public Patent Foundation President Dan Ravicher said his organization disagreed with the Patent Office's conclusions and offered a broader critique.

"Microsoft has won a debate where they were the only party allowed to speak, in that the patent re-examination process bars the public from rebutting arguments made by Microsoft," he told CNET News.com. "We still believe these patents are invalid and that a process that gave the public equal time to present its positions would result in them being found as such."

Compatibility and interoperability are the foundations of competition in the technology sector, and this patent is a powerful example of how to destroy that foundation. If disruptive technologies like Linux and Samba can be eliminated through clever use of the patent system, what does that say about the subversion of the constitutionally defined purpose of the patent system, which is to promote the useful arts and sciences? We can hope that the new mechanisms proposed yesterday will aid the USPTO in rejecting this type of patent in the future.

Patent Reform via Open Source

2006-01-10T09:14:00.000-08:00

Big news in the patent world today: the USPTO will be partnering with the open source community to improve patent quality. Three key changes will be introduced:

Open Patent Reveiw seeks to form communities around specific topics and areas to aid patent examiners in determining application validity. No longer will prior art be determined only by the applicant and the examiner. Anyone can participate, and anyone will be able to receive email alerts or RSS feeds about new patents that they can then provide input on.

Open Source Software as Prior Art. OSDL and industry leaders in the open source world will build a database of existing open source software that is searchable so that it can legally qualify as prior art.

Patent Quality Index. Patents and applications will be assessed and evaluated with numeric scores to quantify their quality. This, again, will be an open process, with anyone able to participate, and has some potentially broad implications. Once such an index is in place, I could envision its scoring having a positive effect on litigation (low-scoring patents could be perceived as having higher chances of being overturned in court) and thus bring some form of market-pricing to royalties where now only monopoly pricing exists (low-scoring patents would have downward pressure on licensing pricing).

Even though IBM is pushing these reforms, it is hard to see how they benefit large corporations any more than they benefit small, independent inventors. Raising patent quality helps everyone, from the independent inventor to big companies. Better patent quality makes for increased certainty regarding patent claims, and reduces the number of bad patents that impede innovation and remove competition. And by introducing a numeric scoring mechanism for granted patents, the USPTO is formally admitting something that everyone has known all along: not all patents have identical quality.

The open nature of all three proposals is revolutionary. Currently, you (as a third party to the examiner and applicant) have no say in the process, no voice in the evaluation of prior-art, non-obviousness, or general quality. All three of these reforms are open, and anyone will be able to participate. That kind of democratization can't be a bad thing.

Further details can be found in several outlets, including news.com, LinuxElectrons, and Peter Zura.

Ridiculous Patent: Peanut Butter & Jelly Sandwich

2006-01-09T08:40:00.000-08:00

What do you get when you take a regular peanut butter and jelly sandwich, cut off the crust and crimp the edges (like a Kellog's Pop-Tart)? You get USPTO Patent Number 6,004,596 and a monopoly on building this sandwich until at least 2019. And Smuckers (the owner of this wonderful invention) have already shown that they will enforce their patent by calling out the lawyers -- just ask Albie's Foods of Gaylord, Michigan, who were forced to stop making their "E.Z. Jammer" sandwich until they settled with Smuckers for an undisclosed sum, despite the fact that this type of sandwich had been made and sold in northern Michigan since the 19th century.

If you'd like to know more about this example of how our current patent system provides a means to crush innovation, stifle competition, and reinforce the strength of large corporations over smaller business and independent inventors, head over to MIT's Technology Review, or take a look at the Wikipedia entry.

Patent Office: Reform Thyself

2006-01-04T08:04:00.000-08:00

On the front page of the USPTO website today a press release appeared, touting a major shift in patent examination policy.

[The US Patent and Trademark Office], in its continuing efforts to make the patent examination process more effective and efficient, is proposing changes that would reduce the amount of rework by the USPTO and reduce the time it takes to issue a patent and the patent review process. Specifically, these initiatives will prioritize the claims reviewed during the examination process and better focus the agency’s examination of patent applications by requiring applicants to identify the most important claims to the invention.

You can find more details about the proposed changes, as well as submit feedback to the USPTO on these modifications, by following the above links.

There are two interesting things to note concerning these proposals. The first is that the USPTO has been under fire of late for the large number of frivilous patents that it grants and the number of high-profile cases involving these patents that have given the whole process a black eye. Reform measures have been floated before legislators [1] [2] [3]. Stinging editorials have been written [1] [2] [3]. Criticism from nearly every corner is rising. The USPTO sees the writing on the wall; if they don't change their ways, someone else will force them to change. This is a smart preemptive move. But does it go far enough?

Which brings us to our second observation. By its own admission, the proposed changes will only be effective if patent applicants facilitate "more effective and efficient patent examination." Indeed, the changes rely 100% on the applicant helping the examiner by highlighting the most important claims and not submitting applications with too many claims. But what incentive does the applicant have? Will the USPTO give applicants a discount for applications it deems to have gold-star form (whether or not the patent is granted)? Or will the USPTO begin to favor granting patents to applicants who submit applications that facilitate "more effective and efficient patent examination" over those that do not? There must be some incentive for applicants to be helpful, but it seems that whatever incentive the USPTO can offer, it is not as large of an incentive as the applicant has to game the system and continue to abuse it in any way that might be advantageous to him.

Nevertheless, we applaud the USPTO for stepping up and trying to improve the process. There is certainly good to come if the patent office can implement some of these changes, and they have a fair chance at slightly improving things while we wait for more sweeping changes to come down the legislative pipe. Do add your voice to those now preparing arguments to submit to the USPTO regarding these proposals. Otherwise, only the parties that benefit most from a broken system (whether they be lawyers, large corporations, or small patent trolls) will be heard. You have until May 3, 2006 to submit written comments.

The Patent Epidemic

2006-01-03T07:52:00.000-08:00

The mainstream press is paying more and more attention to patent system abuse, as is evidenced by a BusinessWeek editorial dated January 9.

How to determine when an invention is "obvious" is one of the most critical and contentious issues in patent circles. Over the past two decades, critics say, the hurdle for passing the obviousness test has been steadily lowered, and the U.S. is now awash in a sea of junk patents.

There are several appealing solutions that address the 'obviousness' problem, among them the independent invention defense and premature expiration for lack of usefulness.

The article continues:

A coalition of businesses...and...two dozen intellectual-property law professors have made a similar filing. Massive overpatenting, the professors say, "creates an unnecessary drag on innovation," forcing companies to redesign their products, pony up license fees for technology that should be free, and even deter some research altogether. [links added]

And concludes:

The bottom line: Rulings rejecting patents on the basis of obviousness are rare, and massive overpatenting continues to be a thriving business.

Well said.

Take action on this issue: write to your Senators and Congressional Representatives (feel free to cut and paste any text from this or any article at Right To Create -- you may find the text on the independent invention defense or premature expiration particularly easy to use as the body of a letter to your elected officials).

Premature Patent Expiration for Lack of Usefulness

2006-01-01T08:06:00.000-08:00

In earlier days, inventors were required to submit working copies of their invention along with their patent application to the USPTO. The purpose? To prove 'usefulness,' which the patent office defines as:

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.

Submitting working physical instantiations of inventions is largely impractical today, and so "usefulness" has become a subjective criteria, determined by a lone patent examiner on a case-by-case basis. It has been argued that this subjectivity has greatly contributed to the decline of patent quality, with many patents granted each year for 'inventions' that don't yet exist in the real world, filed by 'paper inventors' who have no intention of ever actually creating their "inventions," but rather lie in wait to sue anyone who independently arrives at the same idea and tries to sell some product based on it. Such patents have become the main fuel source for litigation instigated by patent trolls.

Reinstituting the requirement to submit a working instantiation is impractical. But there is a fix for all this: Automatic, premature expiration of patents that don't, within some fixed timeframe, have either 1) a corresponding product in the market place or 2) a licensee.

Under such a reform, the inventor could produce the invention himself, or pitch it to industries that might be interested in manufacturing it themselves. The additional hurdle to the inventor is not great; at worst, he would need to build one working copy of his invention and put it on his own website or eBay (perhaps for a hefty price tag) within the fixed period.

How does this reform increase patent quality and limit abuses by patent trolls? Classic patent trolls file applications with broad claims in anticipation of directions in which an industry might one day move, never working out the details of how exactly their 'invention' could be implemented. They then lay in wait for someone to create an innovation that looks like it might overlap with their claims, and file or threaten lawsuits. By forcing "paper inventors" to either create and market instances of their inventions or licensing them to third parties that will, the incentive to carve out huge land-grabs in the IP-space are greatly reduced. This class of inventors could still be wildly successful, but their success would hinge on the marketplace assigning appropriate value to their inventions.

Making the patented material prove itself in the marketplace removes the patent examiner's subjectivity and replaces it with the objectivity of the free market. 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.

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.

Hooray for the USPTO!

2005-12-21T07:34:00.000-08:00

The New York Times is reporting that the USPTO has taken the unusual step of notifying both RIM and NTP that NTP's patents will be invalidated.

We do our fair share of criticizing the patent system here at Right to Create, and often the criticism lands squarely on the USPTO. But we will admit that the USPTO sometimes gets things right when they try, and their involvement in the RIM v. NTP case is a great example of them putting forth extra effort.

But let us not forget that NTP wouldn't have had a case to take to court against RIM if the USPTO hadn't approved these spurrious patents in the first place, that both RIM and NTP have wasted millions of dollars in court because of these bad patents, that RIM has seen massive losses in potential sales and stock devaluation as a result of the case, and that a large number of your tax dollars have also been wasted in this court battle.

We shouldn't lay all the blame at the feet of the USPTO; much of the blame lies with Congress' abdication of patent system oversight and unwillingness to put forth truly meaningful patent reform measures. But let us also see the USPTO's actions for what they are: a demonstration that it does have power to do the right thing when it wants to. Saddly, it doesn't have the resources to take this kind of action for many, many cases that are identical to NTP v. RIM in their absurdity. Undoubtedly, the USPTO acted in this case because of tremendous pressure put on them from the press as well as internally from actors within the government. Would they have done the same had the press not covered the case so fervently? Would they have done the same for you or I if we were in RIM's position against a patent troll like NTP? I hope so, and I hope this case causes the USPTO to take another serious look at their processes. But I fear that the answer is simply, "no," and that until serious, meaningful reform is enacted in law, we are stuck with a system that punishes innovation at least as much as it helps it.

BusinessWeek on our Failed Patent System

2005-12-20T12:49:00.000-08:00

From the article:

For over 200 years, the U.S. patent system has catalyzed economic growth and protected the national interest. Unfortunately, over the past few decades, patents have become irrelevant -- even harmful -- to the innovation process.

The striking thing is, this editorial wasn't written by some crank. This is Greg Blonder, who led research at AT&T for a number of years, has 70 patents to his name, and is now involved in funding startups through venture capital. What does someone with his experience think of the current state of affairs with our patent system? He thinks that there is a serious problem with patent quality, even admitting that most of his 70 patents shouldn't be protected by government granted monopoly.

Read this article. Then read the comments in the feedback section. It seems that we are reaching broad consensus on these issues: the patent system needs some serious, meaningful reform.

Why Drug Companies Don't Need Patents

2005-12-19T12:32:00.000-08:00

In any debate over the utility of patent systems, IP-maximalists will almost always fall back to the example of the pharmaceutical industry. If this industry didn't have the incentive of monopoly on new drugs, they would never invest the millions of dollars that are necessary to perform new drug research and development, so the argument goes. Without new drug research, no new drugs would be produced. And if new drugs aren't produced, we all suffer from sickness and death. Therefore, they claim, patents are not only good, but directly vital to our well-being.

At first glance, this argument seems quite compelling. Those who put forth this argument choose it carefully -- no other industry, it seems, spends so much money on research and development, and is in such need of protection from cheap knockoffs. Or so it seems.

The truth is, these arguments are so poorly-founded and so misleading that we shouldn't feel bad about calling them, simply, "lies." Here are 6 reasons why:

History. Historically, western countries have had vastly different levels of monopoly protection for chemical production and chemicals themselves, ranging from almost no patent protection (in Switzerland prior to 1977 and Italy prior to 1978), to patents only for chemical production processes but not the products themselves (in France and Germany), to full monopoly grants on both processes and products (in the US and UK). Boldrin and Levine summarize these facts as follows:
Now, you may be wondering, why are we boring you with all these details about specific countries, patenting of chemical processes, and pharmaceutical products, and so forth? For a very simple reason: if patents were the source of medical innovation as claimed by intellectual monopoly apologists, the large historical and cross country variations in the patent protection of medical products should have had a dramatic impact on the pharmaceutical industries of the different countries. In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything in continental Europe. Further, countries such as Italy, Switzerland and, to a lesser extent, Germany, should have been the poor sick laggards of the pharmaceutical industry until the other day. Instead, as everyone knows since high school, the big time opposite is and has been true. This is as macroscopic a contradiction of the intellectual monopoly apologists' argument for patents in general, and for medical patents in particular, as one can possibly imagine.
Boldrin and Levine are correct: the most prolific innovators in the pharmaceutical industry during this period were precisely and consistently those countries with the weakest patent monopoly protection.

Patents Hinder Drug Research. Much as we've seen before with patents hindering science in general, patents are having a major effect on killing drug research. The chief scientific officer at Bristol Myers Squib, Peter Ringrose, told The New York Times that there were "more than 50 proteins possibly involved in cancer that the company was not working on because the patent holders either would not allow it or were demanding unreasonable royalties."

Public Funding of Drug Development. According to the NIH, taxpayer-funded scientists conducted 55 percent of the research projects that led to the discovery and development of the top five selling drugs in 1995. The assumption in the argument for patents is that no one but commercial interests will do drug research. This is nonsense. We spend billions of dollars in tax money on new drug development every year -- in many cases, these are drugs that save lives that the pharmaceuticals are uninterested in researching, because their profit margin is too low. So we already have government subsidized drug development. What this means is that we, as a society, agree that this is an important public good, and should be funded as such. Do other public goods need patent protection? And yet we give our government-funded and developed goods patent protection, and allow pharmaceuticals to pay public researchers and universities for those exclusive rights. Tell me again, how does this setup benefit anyone but monopolists?

Here are a handful of additional stunning facts with regard to private vs. public spending on drug development (from the Public Citizen report on drug R&D myths):
- A study by a Massachusetts Institute of Technology (MIT) scholar found that publicly funded research played a part in discovering 67% of the most important drugs introduced between 1965 and 1992.
- 90% of the top-selling drugs from 1992-1997 received government funding for some phase of development.
- The NIH report discovered that only 14 percent of the drug industry’s total R&D spending went to basic research, while 38 percent went to applied research and 48 percent was spent on product development. The report concluded, “To the extent that basic research into the underlying mechanisms of disease drive new medical advances, the R&D in industry is not performing the role played by public research funding.”

Pharmaceutical Spending. The fortune 500 drug companies dedicate 30% of their spending for advertising and administration. Only 12% gets reinvested in research and development. So much for the massive costs of drug development. Does this industry that requires so little on up-front investment in R&D really need the added benefit of government sponsored monopoly protection?

Excessive Profits. One of the most effective indicators that anti-trust regulators use to determine monopoly power is the presence of excessive profits; monopolies have the power to 'rent-seek' and set prices artificially, and so profits that are out-of-line with other industries are good evidence for monopoly power. In the case of pharmaceuticals, the evidence is not hard to find: exorbitant amounts of money spent on advertising (most in the form of drug rep visits to offices, purchased lunches and trinkets, fully-paid vacations to expensive resorts given under the guise of conference attendancee, etc), exorbitant amounts of money spent on lobbying (pharmaceuticals are perennially in the top 3 of campaign contribution industries), and exorbitant profits (how often do you hear about a "struggling pharmaceutical?"). Does this industry that makes so much money at such high prices to consumers really need the added benefit of government sponsored monopoly protection?

Patents Kill. Sadly, in much of the developing world, patents restrict countries from obtaining or manufacturing medicines that could save lives. It seems that our Intellectual Monopoly Regime says that patent claims by pharmaceuticals are more important than life itself in many cases.

So, when someone tells you that the pharmaceutical industry is a perfect example of why patent monopolies should be granted, go ahead and agree with them -- just make sure to help them understand that even that strongest of pro-patent examples is not very strong at all. As Boldrin and Levine summarize:

the case for patents in pharmaceuticals is weak – and so, apparently, even under the most favorable circumstances patents are not good for society, for consumers, or in this case, for sick people. Patents are good for monopolists, but that much we knew already.

Another Patent Reform Proposal

2005-12-15T07:51:00.000-08:00

Patently-O summarizes a recent proposal by two law professors and an economics professor: weaken the 'presumption of validity' of granted patents, offer a new higher-priced examination that comes with a 'presumption of validity', and institute a post-grant opposition system.

These reforms sound like a very small baby-step towards meaningfulness. But those steps are hampered by the advantage they would continue to give to well-healed parties over those without the resources to participate. Large corporations, for example, would be more able to afford the higher-priced examination, and would be much more likely to fund a small army of lawyers to participate in the post-grant watchdog process. Meanwhile, independent inventors, startups, and small businesses are left with the scraps of patents stripped of the presumption of validity, and with lingering fears that a rich competitor will post-grant their patents to the grave.

Here's a reform that helps the small guy: make Statutory Invention Registrations (SIRs) free. Subsidize their examination costs with the fees collected for patent applications (the USPTO takes in more money than they spend). SIRs don't provide inventors with exclusive monopolies, as patents do, but they do offer protection in the form of documented prior art and proof of inventorship. And, perhaps most importantly, with more SIRs the chances for examiners to find claims on applications that should be invalid is increased, and patent quality increases.

Why would a small startup want to use SIRs instead of patents? The more I talk with people doing startups, especially in the high-tech industry, the more clearly I see that their fears are not that big companies will 'steal' their ideas, but more that big companies and patent trolls will force them out of business. Their attitude, by and large, is, "I don't care if someone wants to try to compete with me on merits. What I do care about is the constant fear that someone will get a court to grant an injunction against our innovative products." For this group, SIRs could be a powerful tool, without removing the option for others to file for patents. The only problem? SIRs, although slightly cheaper than patents, are not cheap enough to make them attractive over patents. By subsidizing their examination, we would incentivize innovators to file.

'Patents Kill,' say Doctors Without Borders

2005-12-14T08:14:00.000-08:00

This year's World Trade Organization (WTO) meetings are producing some interesting debate:

The Nobel Peace Prize-winning relief group Doctors Without Borders warned Tuesday that WTO rules on intellectual property rights make life-saving drugs too expensive for poorer nations.

As one example, a recent WTO agreement on protection of patents has left some 26 million people in Africa without hope of gaining access to AIDS medications that were available before the treaty:

in all these countries one company has the monopoly to sell and make the drug available. Before WTO rules, it was possible in WTO countries for local manufacturers to produce their own versions of newer medicines and that always led to a downward effect on prices. The newer medicines - and I'm talking about medicines that have been developed since 1995 - are almost all priced out reach of people in developing countries.

The newer rules do allow countries to domestically produce and sell patented medicines in the interest of public health, but only Kenya and South Africa have the industrial know-how to attempt this -- the rest of the continent is essentailly excluded from medical treatment because of patent monopolies.

AIDS is perhaps the most striking example, because of its nearly pandemic nature in Africa and its deadliness. But similar arguments can be made about a multitude of other medicines that are considered vital to public health in the developed world, yet are withheld by force from those who need them most: the poorest and needy.

This Christmas season, perhaps we can try to help these people. You can certainly post your feelings about these things in the forums at the WTO website, but it might be more effective to try to get your locally elected officials to push for reform. Write to your senators and representatives.

Followup: Why Drug Companies Don't Need Patents

Creative vs. the World

2005-12-12T07:45:00.000-08:00

As you may have heard from the mainstream press, Creative Technology is threatening to sue all makers of portable music players over an interface patent that covers selecting songs hierarchically in a music player, e.g., by selecting genre, then artist, then album, etc.

Peter Zura is betting that they won't go after Apple's iPod, because Apple's patent portfolio is 5 times larger than Creative's. If Creative were to go after Apple, Apple could use their portfolio defensively in a counter-attack against any number of Creative devices, products, and technologies. But what about smaller companies that aren't as well endowed with patents? What about the startup with an absolutely phenomenal new way of listening to music that gets shut down by Creative? What about small inventors?

This is an excellent example of how our patent system works to benefit large corporations and disadvantages the independent inventor and small business. Only those with huge patent arsenals are allowed to play this game, and if you've only got a couple of handguns and rifles, well, good luck. You probably aren't any match for your opponent who has uranium-depleted armor-piercing automatic machine guns.

Ridiculous Patent: Patenting Math

2005-12-09T07:26:00.000-08:00

Today we point you to US Patent #6,434,582, "Cosine algorithm for relatively small angles." You read that right. The USPTO granted a patent on generating cosines for small angles.

If you read the claim, it appears that it applies only to a physically embodied circuit inside of a arithmetic logic unit (ALU). If you look at the diagrams, it certainly looks like it covers schematics. But this is almost certainly misleading. The talk of AND gates and OR gates and wired inputs and outputs describes precisely the logic required to perform the computation. And, if you read claims 11-14, it is clear that the patent is meant to apply more broadly than to just the physical embodiment of the circuit, that it is intended to extend to the algorithm itself. Any theoretical computer scientist or electrical engineer did homework excercises in college whose answers looked a whole lot like this.

Why is this dangerous? The patent covers pure logic. Pure logic is mathematics. Math is considered to be a fact of nature. Under 35 U.S.C. §101 patents can't be granted that cover the "laws of nature, natural phenomena, and abstract ideas." But here you have it: a government granted monopoly on a natural phenomena.

This is but one example. All computer software reduces to math (this too is a fact of nature, resulting from theoretical work of men like Alan Turing and Alan Church). All algorithms are math. All computer software, therefore, should be excluded from being patentable. Yet it is not. In fact, the USPTO has granted over 170,000 patents on software.

Why is software so fundamentally different from other types of inventions? Software is easily authored by anyone who wants to spend the time to do so, much like books are easily authored by anyone who wants to put pen to paper. It takes a bit of training and practice of course, but the end result is the same: an abstract idea implemented inside of an abstract device (in the case of a novel, inside the pages of a book; in the case of a program, inside the processor of a computer).

As Ben Klemens at the Brookings Institute wrote,

When you use the Record Macro feature of your word processor, you are writing a computer implemented technology which may infringe a patent—and if you put that document online, you are distributing your infringing technology worldwide. There are over 170,000 software patents filed with the U.S. Patent and Trademark Office, many very broad and all written in unintelligible legalese. It is clearly absurd to propose that every person in the U.S.A. must do a full patent search every time they record a macro, but that is theoretically what one would need to do to avoid liability.

The result is a law which is only partly taken seriously. Ronald Mann, a scholar at the University of Texas, interviewed venture capitalists and programmers, and found a resignation toward software patents: programmers do not do a patent search on every line of code, but instead simply assumed "[...] that there would be something in IBM's [patent] portfolio that their product infringed." Testimony after testimony to the Federal Trade Commission by businessmen and programmers said the same thing: to stay within the law requires such an absurd, paralyzing amount of work that nobody bothers. Conversely, one would be hard pressed to find a pharmaceutical company which does not bother with regular patent searches.

To give a more ironic example, the Recording Industry Association of America is famous for its crackdown on infringement of the intellectual property of the artists it represents, but a company named Altnet claims that the RIAA's technological attempts to stop peer-to-peer networks are infringing its patents. Even the most vehement defenders of intellectual property are unable to ensure compliance with the vast array of software patent claims.

Simply put, it is effectively impossible for you or the people in your IT department to use a computer without infringing on a patent.

India Strikes Back at Bad Bio Patents

2005-12-08T05:42:00.000-08:00

The Indian government is creating an encyclopedia of traditional Indian medicine, hoping that it will be used as evidence to invalidate existing patents and prevent new ones. This is a good example of a disadvantaged country striking out against the Intellectual Monopoly Regime (we previously wrote about less effective attempts by Andean nations to do something similar).

In 1995, the US Patent Office granted a patent on the wound-healing properties of turmeric.

Indian scientists protested and fought a two-year-long legal battle to get the patent revoked.

Last year, India won a 10-year-long battle at the European Patent Office against a patent granted on an anti-fungal product, derived from neem, by successfully arguing that the medicinal neem tree is part of traditional Indian knowledge.

In 1998 the US Patent Office granted patent to a local company for new strains of rice similar to basmati, which has been grown for centuries in the Himalayan foothills of north-west India and Pakistan and has become popular internationally. After a prolonged legal battle, the patent was revoked four years ago.

And, in the US, an expatriate Indian yoga teacher has claimed copyright on a sequence of 36 yoga asanas, or postures.

Dr Vinod Kumar Gupta, who is leading the traditional wealth encyclopaedia project and heads India's National Institute of Science Communication and Information Resources (Niscair), reckons that of the nearly 5,000 patents given out by the US Patent Office on various medical plants by the year 2000, some 80% were plants of Indian origin.

As it becomes increasingly clear to the developing world that IP-maximalism hurts them more than it helps, we should see more efforts like these. With any luck, they will prove to the rest of the world that the freedom to create is more important than artificial idea monopolies.