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Do Patents Still Work?
"Here is my real question: What if we stopped issuing new patents in the United States: would 'the progress of science and useful arts' suffer? Prior to the advent of the Internet and the success of the Open Source movement, I would have said yes. Now I am not so certain. What do you think?"
Of course, these days, patents are used to prevent innovation more than anything else. I find this rather ironic.
More hilarous than ironic, this gem from Forge illustrates what can happen when the Patent system gets slightly out of control: "Hyperspace communications has been patented and is now my nominee for strangest patent. According to this story on the Register someone has not only "invented" hyperspace but has also figured out how to use it for transmitting data faster than light. My question is, does a fictional work count as "prior art"? To add to this concept Arthur C. Clarke is widely credited with having invented the communications satellite. The infamous band of space in which geostationary satellites orbit is known as "the Clarke Belt" in his honor. However he once said in an interview that he might have patented the idea if it had occurred to him that someone might actually build such devices such a short time after his story."
The big question here is how can you patent something that hasn't been invented yet? It seems that I can conjure up any flight of fancy that might just have a passing chance at becoming truth, patent it and make that idea mine forevermore?
const submitted a question that offers a potential solution: "I'm interested whether the patent madness may be stopped by restricting the number of patents in addition to shortening their time. If only 100 patents will be granted each year for the computing industry, only significant advances will be patented and things like the now infamous one-click patent will not get through the jury of experts in the field. The progressive scheme may be like the following: 1 patent - 10 years; 10 patents - 3 years; 100 patents - 1 year." which would make getting patents more of a competition between implementations, and to compete for the protections offered by patents sounds like a fair way to "promote the progress" in any given market.
LZW is patented, so there is a move towards other compression algorithms, many of which are better in a general case. This suggests that progress was promoted. This is of course not how it was meant to work. The purpose is to allow other people to produce works based on the patented technology. This doesn't seem to be happening.
It seems that the patent holder has too much control over how their patents are used. In the past this didn't matter so much. Producing a machine costs money. A small surcharge from the inventor of the machine wouldn't affect this significantly. If the inventor asks for a fair price then everybody's happy.
The system breaks down when the patent owner uses the patent to prevent competition. Either by refusing to let anyone use the technology, or by charging too much to allow certain groups to use it. Because software can be produced on a shoestring budget, the latter is often unintentionally the case.
Due to my research, I've looked at patents where they actually make sense; chemicals and chemical processing, in which the patent usually revolves around the composition of the catalyst used. Some of these are very narrow, but some cover huge numbers of possible compositions, as well as large numbers of possible elements to use. (Such as up to 20 metals as catalyst promotors.) This would be all well and good if their provided enough examples of these, but in most cases, only 2 to 3 examples are given, covering only a tiny amount of their 'composition space'. Sure, I know that one can extroplate that if platinum (a noble metal) works, then most likely other noble metals such as palladium will also work, but most of the metal selections don't have rhyme or reason-- they just take as many as possible.
This is part of what needs to de done: the reviewing of the patent. Often I read that the patent office is swapped, and they have to push patents through as fast as possible to achieve their required quota, and furthermore, especially for computer-based patents, the expertise is not there. One solution is to throw more money at the problem and get more patent people in place with more viable skills with newer patents, but that's only half the problem.
The other is the time factor. Earlier this century, when the speed of information transfer was limited to snail mail, telegraph, and the telephone, the disclosure of ideas would take a long time, and thus long times for the delays of patents was necessary. However, as we've got to television, satillite communications, the internet, and whatnot, information moves much much faster, and the same time that was required 100 yrs ago is not really needed. However, one must still considered that there are a considerable number of patents that come out on tangible, real, processes (such as chemical production); if the patent office was to shorten up the time scale too much, a competiting company can design and build a facility (which can take a few years) that uses a patents but turning it on the day after the patent lapses, and benefit from the findings of the other company without paying for it, which is highly uncompetitive to the entire field.
So the time of patents does need to be shorted but not too much; 17 yrs is currently too long for the e-commerce patents, but 5 yrs is too short for process patents. Furthermore, you cannot just catagorize patents into "short term" and "long term" ones; while you could easily seperate the patents of today into those two areas, how can you know that in the next few years someone will have a patent that could fall into both because of the thinning of the real and virtual worlds? The nature of the patent should grant it no special privaleges.
At this point I would argue 7 to 10 years for patents. It should be long enough for the patents that were truly put in place to be protected, but fast enough for the new types of patents to disappear quickly. But of course, if combine this with patent reform and a tightening of the review process, few "bogus" patents would be issued, and we would not have to wait 7 to 10 years for that bogus patent to elapse.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
But these problems should be seen as part of a larger challenge facing intellectual property protections. The Napster and DMCA and DeCSS problems are all related to copyright - another form of intellectual property protection, which is challenged by our new information technologies' ease of dissemination.
Some people have called for major revisions to our copyright laws, and others (like Jeff Bezos and the people in the introduction above) have suggested that the patent system should face strict reforms.
These are sometimes extremely good suggestions, but we would do well to keep in mind the following:
2. We cannot just tinker with these systems, but must treat them with profound respect (even if they are broken) because huge amounts of money and acclaim could end up going to people who don't deserve them, while innovators who do deserve them could get screwed.
3. If we think of copyright and patent problems as parts of a larger set of intellectual property issues that need consideration, it will actually help avoid confusion -- and we will be more likely to convince others (read: legislators) that these issues deserve attention.
For more background on the patent problem, see James Gleick's superb piece, Patently Absurd (NY Times, 12 Mar 00).
A. Keiper
The Center for the Study of Technology and Society
Washington, D.C.