Friday, September 24, 2004

Problems with the patent system

As we spent the last class talking about the economics of information I wanted to carry on some thoughts brought up by Boyle's paper concerning Intellectual Property, and in particular the intellectual property of Information.

I spent a while in an engineering design consultancy where I was in contact with IP all the time. Whilst the system was originally designed to protect inventors and promote innovation there are several key problems with how it is being used now.

1. It no longer protects the individual inventor
The lone inventor now has a hard time protecting their patents. Whilst it is still very valuable to have a patent, at least in filing, the problem occurs when the individual inventor does not have the money, or time, to follow up on any infringements. Hence, even with a patent, the cost of the court cases and legal fees that can be required to chase down any infringements from large companies with an army of lawyers can be overwhelming. At some point the inventor will ask themselves is it really worth it or would they rather still be inventing than standing in court.

2. Those with the money can abuse it
The economics of paying for and maintaining patents are now being skewed by large companies. Whilst for a small company the cost of their patents can still be significant, large companies are able to file patents at will as the relative cost to them is so small. I met a guy from HP recently who said their lawyers couldn't keep up with all the patents they wanted to file. Clearly smaller companies have to pick and choose carefully which patents they choose to apply for, which leads me too...

3. Strategic patenting
So as a big company I can file as many patents as I need. So companies have begun to build a, metaphorical, fence around their ideas with a battery of similar patents related to an idea. One central idea is protected by twenty or so related patents to cover every alternative. This can make it a difficult job to get to the real 'quality' patent that lies behind all the variations.

4. Reasons not to patent and deliberate obfuscation
But also many companies have realized the value that lies in the information contained within the patent databases. The depth of information required to file a patent means that it has become a wealth of valuable knowledge for anyone seeking to invent or improve upon existing ideas. And people regularly exploit weaknesses in patents. So when you patent you protect your idea but you run the risk of allowing others to improve upon yours as you make it public. Realizing this problem companies regularly try to obscure the key idea as much as possible to make it either impenetrable to understand or impossible to find. Alternatively, for any internal innovations many companies are simply deciding not to patent and are relying on 'trade secrets' instead.

5. Software patents
I'm no expert on software patents but there clearly holds dangers and changes ahead as the debate rages on.

Patents are a key component of the economics of information in business and relatively recent changes in the way the system is being used - often brought about through the huge imbalances in company wealth - provide a big threat.

And briefly on quality - anyone who looks through the patent system will rapidly find that the quality is generally pretty low. (In the Oakland Museum of California they have a small section with Gold Rush era patent applications where they still required inventors to provide a fully functioning scale model with their application - perhaps we should reinstate that requirement...) I've heard statistics that more than 95% of patents never make money. With numbers in the millions of patents and more being filed every year, the skill to sift out the quality from the rest will become increasingly important.

6 Comments:

Blogger Joseph Lorenzo Hall said...

Jono makes a great point... the patent system is broke and no where is this more obvious than with patents in software. Jason Schultz at the EFF keeps a running record of silly software patents... the EFF has also started a patent-busting project that aims to be a depository for prior art (which can be used to invalidate a patent). The Public Patent Foundation is starting to challenge the worst patents (not just in software) one at a time.

12:49 PM  
Blogger schloss said...

(Opinion follows.) The problem with software patents is in the nature of software itself. Software is about creating algorithms (read as: processes) to solve problems. Patents are rewards for innovative methods and processes to solve problems. In other words, almost anything software would be eligible for a patent. Without knowing what guidelines software patents use, I'm going to reserve judgement except to say that I'm skeptical of it from the outset.

Compare this to copyrights. Copyright protects the fixed expression of ideas, such as those in software source code. The bigger problem with software patents is that software can (potentially) now both patents and copyrights. This is incredibly stifling since not only are you protecting the algorithm (method) for solving a problem, you're also protecting the code that solves that algorithm too -- a kind of double jeopardy for the software industry. If they can't sue you one way, they can get you another...

As for your other problems with patents, I'll only say that the intent of patents (and copyrights), per the Constitution, is 1) to give inventors incentive to create by protecting their creations (as in limited monopoly) and 2) to ensure the eventual return of those creations to the public domain (as in "standing on the shoulders of giants" to create new works, ideas, etc.). IMO, anything that doesn't accomplish both of those goals together is not an acceptable arrangement of the patent (or copyright) system.

3:32 PM  
Blogger Paul Duguid said...

I need to comment with care here as Geoff is a patent holder. It will not do to speak too unkindly of the breed.

We should also remember, perhaps, that Berkeley is part holder of the infamous EOLAS software patent. Its gall is outsripped, however, by UCSF, one of whose doctors, as James Boyle points out, patented a patient's spleen without the patient's knowledge or permission, and got away with it. UC ranks high among the rank smelling institutional patent holders. (I don't think Geoff's have anything to do with body snatching--which is indeed an old university tradition.)

I tend to agree with what Joe argues, but I want to highlight the phrase "no longer" in his first point. Does this suggest a once functional system that is now dysfunctional. Or is there/was there always something inherently problematic about the system?

Is the same true of the copyright system?

Should we judge IP systems by their theoretical coherence or their practical functioning?

These questions suggest a need to understand these systems in historical context--how they came into being, how they have operated, and why they appear to be falling apart. Which allows me to set up the class and the reading for October on the topic of the author.

First, we need to acknowledge that both patent and copyright system are closely tied to the notion of author (or Joe's "individual inventor"). Boyle's preface suggests that the two are too closely tied. What evidence is there for that?

So second, we should be willing to ask, however natural the category might seem, what sort of figure is the author/inventor? Is it transhistorical? If not (and you can guess my answer is no when I say that), when did it come into being, how, and why?

Foucault's essay (which I acknowledge in advance is not easy reading) offers one argument. But is it necessarily a good one?

Finally, do these systems play any part in maintaining (or undermining) "quality" of information? Looking at Gold Rush patents, Joe suggests not (and he is not alone in that conclusion). Is he right?

We'll get into the IP system in November, but to set up that discussion, we're going to look first at the author as a precondition of (and justification for) ideas of intellectual property.


[We shall probably juggle the October 6th reading around, moving Chartier from primary to secondary reading and adding a shorter, more general piece in its place. I'll let you know on Wednesday.]

11:48 AM  
Blogger Paul Duguid said...

Sorry, not for the last time, I'm confident, I got names jumbled up. It Jono's, not Joe's comments, which I quote and discuss. Apologies to both.

11:52 AM  
Blogger Jono said...

I just wanted to follow up on one of Paul's, many, points - that of what is it that's changed to make the patent system no longer successful whereas previously it has clearly provided a great deal of benefit.

A couple of things quickly come to mind.

One is the inbalance in wealth seen through the emergence of transnational companies with enormous budgets.

This couples unfortunately with the burgeoning legal system and legal fees and requirements that make challenging patent infringements a very long and costly process.

In addition, the rate of patent applications is growing still at a staggering rate. A large company, I think IBM is the current leader, can file as many patents by itself in one year as were filed in total in a year at the outset of the system. Not only does this mean processing time and difficulties but the sheer volume of patents also makes prior art searching difficult and time-consuming and it is still difficult to be certain everything potentially related has been found. A large part of this is the sifting through the 'poor' quality patents. Indeed, there is also a big problem from poor or no translations of foreign patents that further hinder successful searches.

Unfortunately, I am less qualified to talk about software patents.

10:29 PM  
Blogger Riku said...

Software patents are a complicated issue. For one thing, the personnel handling the patent applications have only some hours to spend with each applications. So, how could all these patents be well qualified?

In Europe, there is a big fight going on about possibility to file software patents. One of the best summaries (made by people opposing the idea) is at FFII: Software Patents in Europe

8:09 AM  

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