Monday, August 15, 2011


Idea is a patentable four letter word.

The other week, my three-year-old and I were playing in the backyard, and he said "Daddy, I have an idea.  And you have an idea, too."  I wrote it down, like I write down many things he says that will make it into this blog eventually.  I have lots of ideas for this blog, and sometimes they take a little while to work themselves out into fruition.

That was the intent of our patent system, when it was first set up.  Congress was given the power to "promote the Progress of Science and useful Arts" by Article I, section8, of the US Constitution.  It created the US Patent and Trademark Office (USPTO) to do just that.  Over the years, it gave inventors a limited time to perfect and profit from their invention, free from competition, with the understanding that in the meantime, anyone could review their work, and possibly improve upon it, but that they had exclusive rights to their own invention for some period of time.  Other countries have their own patent systems, some of them with different goals than the United States, but historically the intent has been to provide motivations to create new things.

At some point, however, inventors realized that they could patent very small, broad, crucial, components and prevent their competitors from doing anything substantially similar, even in a completely different way.  Bell Telephone was notorious for this, holding a massive number of patents on anything that was vaguely related to the telephone and suppressing competition (and innovation) for decades.  Drug companies are notorious for filing patents on very minor changes to their formulae just as their previous patent is expiring.  The latest, and most egregious, examples of patents gone amuck are companies who will patent vague ideas or approaches that are not tied to any particular innovation in technology such that things that are considered "obvious" by those in the industry are considered patentable by an overworked patent office.  Although pervasive throughout many sectors, these seem to be worst in the software industry.  (Or at least worst to me, since thats where I hear about them the most.)

Don't get me wrong - I believe in software patents.  RSA encryption, currently at the heart of most security schemes on the planet, is something that required time and effort to research and invent.  And the company that marketed it was able to profit from it for quite a few years while the rest of the world could see exactly how it worked and try to improve upon it - and improve upon it they did!  But the RSA patent was overly broad, describing the specific "mechanics" of the implementation, yes, but also broadly asserting the broad field of mathematics they were using was patentable.  They vigorously defended their overly broad patent, as well, threatening to sue anyone who came out with other encryption methods that challenged theirs, and holding back progress on strong and easy to use encryption on the Internet.

RSA is hardly the only one with absurd patents of this sort, however.  Amazon patented the ability to store user information in a browser "cookie", even tho the designers of the browser cookie (who did not seek or get a patent) explicitly intended for it to be used this way.  Google has patented the "technology" of changing your logo in an effort to bring back repeat customers.  And in 2006, LSI Logic Corporation patented a list that can be traversed in more than one direction using methods that have been described in computer science textbooks for decades.  These are all obvious uses of "technology" that the patent holder did not invent, but which somehow got past the patent examiner.

Even worse, more and more patents are being owned by companies who have no intent in using the technology they describe.  Instead, they are seeking to use the Bell Telephone model in a (can I say it?) new and innovative way.  Rather than blocking competition - they are cross-licensing patents so they can get access to the patents others are holding, or charging fees that make a new product barely profitable.  Patent pools are now used as weapons to prevent innovation, rather than as a way to spur companies to invent new ways that might supersede the previous invention.

And these are just a couple of small samples of how our patent system has been perverted - it would take far more time than I have right now to even begin to scratch the surface.  You can find additional examples by looking at the patents that come out of the pharmaceutical and bioengineering fields.  Even business proceses, once not considered patentable, can now be treated as "inventions".  What is worse is that the Patent Office is working as hard as it can to get patents approved and out the door, paying scant attention to prior art.

As my son and I were having our chat, lawyers (not inventors, lawyers) and public relations people were duking it out privately.  Although there had been stirrings that Microsoft was making more money from licensing its patents to manufacturers of phones using Google's Android, it was all pretty quiet until Google accused Apple and Microsoft of ganging up in its acquisition of mobile phone patents.  Microsoft fired back - Google was invited to go in on the latest purchase of patents, but walked away.  But Google didn't just want the patents to use, it wanted the patents to trade for other patents that Microsoft and Apple held.  And since it couldn't trade for them, it was going to try and either humiliate or sue Microsoft and Apple for them.  Then Google tripped - it was awarded a few very very silly patents (including the "Google Doodle" patent mentioned earlier).  I would almost speculate the timing of that was intentional - except it takes years to be awarded a patent.

The latest salvo was fired this morning.  Google didn't just buy a patent portfolio it bought an entire company, mostly to get its own "patent weapon".  If the purchase of Motorola Mobility goes through (at a 60% premium over its closing price on Friday), then Google will have acquired a good chunk of patents it can use to deal with Microsoft and Apple.  They make no secret of this, either.  Although they talk about the many devices that Motorola Mobility manufactures, most of the meat of the announcement is contained in one paragraph, where they talk about protecting Android from patent attacks.  I can only imagine how Microsoft is going to fire back.

I have an idea.  Lets get back to inventing, huh?

1 comment:

  1. Most mornings Dan tells me the latest "litigate, don't innovate," stuff after reading Google News.

    My father-in-law never thought the Ferengi were funny, he worked for them.