Patent Nonsense

Forty-four years ago, the world was every bit as exciting, disturbing, and innovating as today.

At the depth of the Cold War, the Berlin Wall split families and friends, the Russians pipped the Americans to the post by sending the first man into orbit around the earth, and the First Edition of UNIX was released.

There is no coincidence that the first major purpose to which the new UNIX systems were put, was the processing of patent documents. The ensuing twisted and often bitter relationship between patents and computing has not ceased to amaze. For although patents long preceded computing – the earliest recognisable patents being awarded in the 15th century – it was the advent of computing that ensured a patent explosion.

The first mistake in the perversion of patents was their extension, most notably in the USA, to cover intangibles such as software and even design concepts.

Claiming and defending intellectual property in a particular type of mousetrap should be relatively straightforward. Trying to apply the same process to a software technique or algorithm becomes considerably more nebulous and contentious, and extending this to cover conceptual approaches and even human genomes is courting disaster.

The original European stance of employing copyright rather than patents in such areas was commendable, but is failing to resist pressure from the other side of the Atlantic.

The second mistake was to transfer their command and control from experienced engineers (and other relevant experts) to lawyers.

It is salutary to remember that one of the greatest minds of the 20th century, Albert Einstein, published some of his most profound work whilst working as a patents clerk. There is another touch of irony in that Einstein’s promotion as a patents clerk was delayed because of his need to fully master machine technology, although he died 16 years before the birth of UNIX.

The process of obtaining a patent, particularly under popular jurisdictions such as the USA, has become complex and opaque, and appears to allow the practised to obtain rights over the most facile and obvious of pseudo-inventions. It does not take an Einstein to recognise that such works are not in the least intellectual, and often have extensive prior art.

Ponder for a moment the appropriateness of US patent application 2010/0285887, for a method and system for operating and participating in Fantasy Leagues, or 2010/0318450 for a system, method and article of manufacture for a network-based child support framework. Would these have impressed Einstein?

The third was to allow patents to be traded freely like any other property.

This has encouraged the formation of corporations whose sole purpose is to act as patent ‘trolls’, buying up patents to assemble a portfolio with the prime purpose of suing much larger and richer corporations for infringement. Patent trolls do not develop their own intellectual property, merely manipulate legal processes to generate income from or against the innovation of others.

In many cases, the patents on which they rely do not even pass muster as being genuine inventions or innovations, merely technical instruments designed to reap profit. Even the more straightforward cases such as those of Nokia against Apple, and Apple against Nokia, are the trading actions of bloated and over-influential corporate legal departments.

The upshot now is that, far from encouraging invention and technological progress, patents are increasingly the combat theatre of specialist intellectual property lawyers, the stock-in-trade of corporations that neither invent nor innovate.

Unless they are radically reformed soon, their already poisonous effects can only stifle progress.

Updated from the original, which was first published in MacUser volume 27 issue 07, 2011. Surely now is soon enough?