Thursday, 11 August 2011

Much Adieu About Patents

I can appreciate the significance of patents. Were I an inventor and I created something novel I would want to protect that invention. Why should someone else ride on my coat-tails? I invested time and money creating my invention and I should have the right to protect that investment. There are actually three separate methods I can use to protect them: trademarks, copyrights, and patents. That said, I'm only going to talk about one of them. Patents.

There is a limit, though. An idea must be novel. If it occurs in the natural world, like mathematics, then it can't be patented. Two plus two is four. It is innate to the universe. Most any child can do basic arithmetic. Extrapolate this method to physics, also a mathematical discipline, and you see the same. The universe and Earth existed long before humans evolved and so those things are not novel in the sense of human creation and therefore can not be patented. What of human physiology? What of human creations based on naturally occurring things. Where, in essence, is the line?

You can't patent a human heart but you can patent a creation which mimics one. You can't patent a human gene but you can patent an altered gene; that is, a gene which has been modified to such an extent that it can be said to be non-naturally occurring. You can't patent a mathematical equation but you can patent a computer algorithm. You can patent something that has already been created as long as no one else has patented it first.

Now, those who follow patent law realize that some of my statements aren't entirely true. While yes, you can patent a creation previously developed and lay claim to it, the patent would be invalid if prior art, examples or depictions of your invention prior to patenting it, can be found. A gene therapy which does not alter the genome in such a way that it can still be said to be naturally occurring also can't be patented.

Some patents are so blatantly obvious that you wonder how one was ever granted in the first place. Certainly, it would be nullified upon re-examination but what if it never comes to that? Patents are a weapon. The sharp edge of innovation. What do you do if you are being sued, by a company with nigh unlimited money, for patent infringement for obviously bogus patents and you yourself would run out of money before you could ever hope to have the patent(s) re-examined? What do you do when that same company offers you a license agreement or a settlement for an exorbitant fee but much less than the cost of your defense? Do you go bankrupt or settle? Which is the better choice?

In computing, the idea of patents is very murky. Computing is, in essence, mathematics. a + b = c is equivalent to 1 + 2 = 3. Calculus. a, b and c are variables which contain values. Using a function to add them together via a mathematical equation and returning the result is just that. Math. Math, as we've already stated is naturally occuring and can't be patented. It's not so simple though. What if my equation is made up of a quantification of superfluous things? Take, for example, a dating site. They may use an equation like: personality + interests = compatibility. They quantify intangible things and use an equation to compute a compatibility score. The equation is naturally occurring but the quantification algorithm is supposedly novel thereby making it patent eligible. Strange, isn't it? That little loop-hole? The question is, is it a valid argument?

I, personally, am not sure it is. However, let's assume that's the case. The issue at hand is: at what point does it make sense to patent an idea to protect yourself from people stealing your ideas vs. attacking anyone who may even remotely prove to undermine your stranglehold on a market? That's the difference between anti-trust and legitimate business practice. Let's be real here. If you invent something unique and novel you can patent it. If you create 100 such items you could potentially hold 100 patents. Yet, some companies have patents in the 1,000's, some over 10,000! That doesn't seem logical to me. How can any one company invent that many patent-able things? The truth? They can't, and they didn't. First off, many of the patents are erroneous at best. They wouldn't hold up to re-examination. Second, these are patents that were purchased from others. Companies amass what people term "war chests" of patents specifically to use against others, or protect themselves against attack. Does that sound like the kind of behavior that patents are supposed to protect?

Patent policy is in dire need of reform but don't hold your breath. Industry controls government not the people. Industry, or at least the most powerful members, like patents the way they are. They don't have to innovate, spending millions of dollars on research and development. No, they can't just extort money from other companies too small to defend themselves, forcing them to sign licensing agreements over bankruptcy.

Does this sound like the innovation that patent law is supposed to protect and promote? I think it's rather to the contrary, that current patent law is stifling innovation. "You create something new and we'll sue you." Ya, I'll get right on that band-wagon. Patent law was based on protecting inventors of things. Like, the Frisbee or McDonald's method of building a hamburger/sandwich (I kid you not). Software patents don't make sense. On the surface it does by conventional means but computers, or more specifically the software they run, are not conventional inventions. They're equations. Literature, if you will. That's why we write programs in computer languages. You can't patent the method of assembling a sentence any more than you can patent water or the equation two plus two equals four. All of them are naturally occurring and could be discovered by anyone. There is nothing novel about them.

I agree that patents are a worthy cause to support. I also think that patent law is in dire need of reform. It just saddens me that it will probably never happen and consumers will be the ones to pay for it. Licenses and litigation cost us money because the more costs a company incurs the more they have to pass on to us. Patents really are something that should concern every one of us because they effect our own personal bottom line. That TV, mobile phone, or any other electronic device (each of those items run software even though you're not aware of it) could cost cheaper if it wasn't for patents. Not because there is a patent on that device which allows only one person to create it. Indeed, if you can innovate a different device to compete against it then you finally have true innovation, the purpose for which patents were created. No, it costs more because companies are either paying licensing fees, lawyers or purchasing patents to protect themselves. If software patents were abolished then the world would be a much better place for all of us.

Groklaw, incidentally, is an excellent site to follow. I highly recommend it.