Loading ...When I think of the patent system, I think of pretty much one thing: the little guy being protected from the huge corporation wanting to rip him off for free.
It’s because of this fear that I am worried the patent system may never be revised to allow free-thought and innovation that it has begun to stymie in the last 10 years or so as people (both big and small) realize JUST how much money is involved in patent lawsuits.
Take for example the new Microsoft/.NET patent lawsuit. This lawsuit is based on the idea that Microsoft is using XML to represent a server-side component tree for a running web application… company XYZ says they own the patent to that and Microsoft better pay up.
Most “algorithm” patent lawsuits like this always seem so ridiculous to me. You have Amazon patenting “clicking once on a button to buy something”, you have Apple patenting the idea of a icon-based user interface that has touch-integration… you have folks patenting how packets can communicate with computers and the list goes on and on.
How are software developers or companies suppose to function in this system? The only reason it hasn’t hit critical mass yet is because everyone that owns a technical patent hasn’t cracked out the lawyers yet to see how fast they could get rich. Could you imagine if all at once, everyone pulled out lawyers and decided to dig through their portfolio and sue everyone that infringed on them? I’m willing to be eleventeen-thousand dollars that folks would find not only that multiple companies own patents that overlap up to 80%, but that all development of almost every piece of software would come to a complete halt.
So if that’s the case, doesn’t there seem to be something wrong with the patent system? Yes I think there is.
When I sent this query out to some friends, Marc Chung, sent back a great reply that I think summed up the differentiating factor here. The quote here is from Don Knuth:
Congress wisely decided long ago that mathematical things cannot be
patented. Surely nobody could apply mathematics if it were necessary to
pay a license fee whenever the theorem of Pythagoras is employed. The
basic algorithmic ideas that people are now rushing to patent are so
fundamental, the result threatens to be like what would happen if we
allowed authors to have patents on individual words and concepts.
Novelists or journalists would be unable to write stories unless their
publishers had permission from the owners of the words. Algorithms are
exactly as basic to software as words are to writers, because they are the
fundamental building blocks needed to make interesting products. What
would happen if individual lawyers could patent their methods of defense,
or if Supreme Court justices could patent their precedents?
I’ve never really thought about it before, but I believe Don is exactly right. The issue here is that we are allowed to patent algorithms themselves. If you wanted to take it to an extreme and it’s OK to patent a technical algorithm, then it should be alright for me to patent processes in real life. For example, I could read the order of ingredients that Nestle puts on the back of it’s chocolate-chip bag, and then sue them for infringement. I could read how John Deer tells me to mow my law, patent it, then sue them, etc. etc.
One problem with not being able to patent algorithms of course is when the discovery or the development of a truly ingenious algorithm comes to light, the original inventor should be protected. For example some insane Google-search algorithm, the solution to cold fusion, etc.
This is likely a bit overboard as I’m not a patent lawyer, but some of these ridiculous lawsuits have happened, continue to happen and will likely get worse until something changes and all the while what is suffering is true innovation.
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April 27th, 2007 at 6:37 am
The U.S. patent system is indeed currently sick. The patent issue that is most bothering me at the moment is the recent patent award in 2006 to BlackBoard company for “inventing” elearning — nevermind that there is demonstrable prior art of this type reaching back almost as far as there have been computers ( http://en.wikipedia.org/wiki/History_of_virtual_learning_environments ).
Most all of the 44 specific claims awarded by this patent are patently absurd. Consider the first claim of the patent: “A course-based system for providing to an educational community of users access to a plurality of online courses, comprising: a) a plurality of user computers, with each user computer being associated with a user of the system and with each user being capable of having predefined characteristics indicative of multiple predetermined roles in the system, each role providing a level of access to a plurality of data files associated with a particular course and a level of control over the data files associated with the course with the multiple predetermined user roles comprising at least two user’s predetermined roles selected from the group consisting of a student role in one or more course associated with a student user, an instructor role in one or more courses associated with an instructor user and an administrator role associated with an administrator user, and b) a server computer in communication with each of the user computers over a network, the server computer comprising: means for storing a plurality of data files associated :with a course, means for assigning a level of access to and control of each data file based on a user of the system’s predetermined role in a course; means for determining whether access to a data file associated with the course is authorized; means for allowing access to and control of the data file associated with the course if authorization is granted based on the access level of the user of the system.”
Each of the 44 claims are basically as general and wide-reaching as this first one.
So, now they own the rights to any networked courseware — nifty, huh? Even though educators have poured nearly countless (and often pro bono) hours into developing these sorts of systems since at least the 1960’s, we find out that some 90s startup company now owns the concept of courseware.
At least the patent office has recently agreed to review this award. It looks like the uproar this patent caused within the educational and open source communities was actually heard for once.
t
(more info here: http://noedupatents.org/ )
April 27th, 2007 at 6:58 am
Todd thanks for the followup… I know Blackboard comes up a lot when talking about “retarded patents” but I have never gotten up to speed on exactly what the issue was… now I see why it’s name keeps coming up.
Do you feel that these issues fall under the “patenting of an algorithm” idea?
April 27th, 2007 at 8:19 am
No, I wouldn’t really say the blackboard patent issue is exactly an algorithm issue — unless you consider the overly-generic process of “many students connecting to a central computer for course information” an algorithm.
Although, your concerns about absurd patents for implementations of an algorithm are well founded. Consider that IBM was given a patent for an algorithm to determine whose turn it is to go to the bathroom — using the sophisticated “first-come, first-served” algorithm, no less! It’s truly reassuring to know that IBM Research Labs is being awarded patents for such ground-breaking, innovative ideas. You can get the scoop on the toilet patent here:
http://news.com.com/2100-1017-961803.html
Note that when the public caught wind of this patent, IBM actually dropped it, due to all of the negative press they received for it.