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Patents

Posted by james on

I was reading an article about some proposed patent changes, and I have completely mixed feelings on it. First off, I have to admit I really don't know what I'm talking about. I'm not a lawyer, I haven't studied patents, the patent system, or patent law except from little bits I've read here and there. I'll try to keep my ignorance under control.

But I have felt for a while that the patent system as it is in America today is very flawed. First, we have to go back to the very basics, which have nothing to do with patents.

First off, imagine you're a native of the land and you "invent" something. Say an axe in this case. There is not natural, exclusive right you have to that invention. If someone sees you with the axe and says "Hey, that's a lot more useful than picking up deadwood" then they copy it. And there's nothing to prevent them from doing so except for your persuasion or physical force. There's no natural, inherent "right" you have to the invention just by thinking of it first, any more than you have a "right" to land just by seeing it first (or by seeing it first except for those pesky indians, just ignore them and plant the flag). In this case, it's just might-makes-right.

So now skip ahead to young America. People start inventing things left and right (the toaster, the steam-powered car, the bathtub, and steam-powered bathtub with built-in toaster) and their ideas are "protected" by obscurity; no one knows how they make it, so no one can copy it. If it's a simple enough invention and obvious how to copy, then people just copy. So the government things, "Hey, inventions are useful for advancing America, but inventors wont keep inventing if they can't profit from their invention." So they device a compromise: Reveal all the secrets of your invention, and we'll give you a legal guarantee of exclusivity for a limited amount of time. This was always optional; inventors could always simple rely on secrecy to protect their inventions, and hope that no one figures it out (destroying their exclusivity), and most likely letting the secrets of their inventions die with them (damascus steel, anyone?). With the patent system, now they could rest assured that even if someone would have figured out their invention, they had legal protection and guaranteed limited-time exclusivity to make their money off it. Then the patent expires, the invention is now in the public domain (ie. owned by everyone), and everyone's happy. Still, patents are not guarantees of a natural right, like freedom or the pursuit of happiness. It's a service offered to inventors to promote innovation and enrich the public domain, and therefore America itself.

One tricky thing though; I've said "invention". I haven't called them "ideas". Traditionally, inventions were physical objects (axe, steam-powered hair dryer). When I created the axe and patented it, I didn't patent the idea of a device that cuts down trees. I patented my axe, the shape of it, the features that make it unique. If someone comes up with a better axe (two-sided! Why didn't I think of that??), then they patent that as well. And on it goes, with each invention bettering the next. That seems like the very description of "innovation." Imagine if I had patented the very idea of a tree cutter-downer; all of the sudden, someone comes up with a new, incredibly awesome axe. Sorry, that fits my idea of "device that cuts down trees", so you can't invent it; it's mine. That doesn't make any sense. Plus, ideas can be vague and meaningless. Imagine, during the era of horse-drawn carriages, that someone had patented the idea of "a carriage drawn without horses." All of the sudden you've patented automobiles, but also baby strollers, wagons, shopping carts, etc. They're just too vague and overreaching, and they're not "inventions"... just ideas. The patent office (PTO) has ruled that math cannot be patent, nor can numbers or information.

Skip ahead to now, where you suddenly have an incredible number of "idea" patents floating around. They're called "business processes", "software patents", and all other sorts of things. But they all come down to the same thing; patenting an intangible idea instead of a physical invention. You really have to wonder, what should be patentable? Probably we should go back to the original purpose; it should encourage innovation in the field and guarantee that America knows the secrets of an invention after patent expires. It should also be a reasonable thing to patent.

So back to the article, the author is lamenting that the patent office's (PTO) recent changes will invalidate many software patents, including Google's all-mighty PageRank patent. But I ask myself, should that ever have been patented in the first place? PageRank is an algorithm that helps Google determine which web pages are relevant, which are not, and allows it to perform awesome searches. I love it, it's revolutionized web searches. But is it really patentable? Is it anything more than a math formula, a vague intangible idea that someone (Stanford in this case) is trying to patent? It seems clear that it is intangible math, which would seem to make it unpatentable. And would that be a good thing?

I don't know. But I definitely feel that America could use quite a bit less patents. Someone should patent the idea of swinging sideways instead of forwards and back, that's a totally valid example of how the PTO operates. Or worse, the idea of "clicking once to buy something!" instead of, say, twice or three times. Ridiculous.