patent : Java Glossary

An idea that goes back to 500 BC that the inventor of something novel should have exclusive use of it for a period. The intent is to reward and encourage innovation. The other big advantage of a patent is the inventor must reveal all the trade secrets needed to make the invention work. This helps stimulate the thinking of other inventors even before the patent expires.

Problems

I once talked with a man who worked at the Swiss patent office (no, he was not Einstein). He said that he had four days to decide whether to grant a patent. He had to read it and understand it. These things were often thousands of pages. He also had to research prior art in addition to the application. The authors of the patent do their best to dress up a simple idea to make it sound extremely complicated. They want to disguise it so that the patent office clerk will not discover prior art.

I have seen so many patents that effectively patented the wheel, or putting the steering wheel on the left hand side of a car. There are only two places to put it, and there is no innovation is picking one side or the other. The patent clerk can’t be an expert in everything, and was bamboozled.

I have seen medical patents where pharmaceutical companies effectively patented something the body produces. This is not their creation. They merely discovered or purified it. They might rate a patent on a process to synthesis it, but not on the body’s natural chemical itself. Monsanto is patenting plant and animal genes and also complete organisms. These are mostly things it found. It did not create them.

Software patents are the worst in this department. Google managed to wangle a patent on ranking hits by how popular they are. That bamboozlement is the foundation of their spectacular wealth. Microsoft was able to use patents to block Stacker (with the puffer fish logo) from inserting its compression engine, claiming that the hook it used was a Microsoft invention, even though such hooks were commonly used in all software to allow module replacement.

Lotus once successfully sued a friend of mine for patent infringement since his VP-Planner Forth-based Spreadsheet engine could import Lotus spreadsheets and used compatible macro keystrokes. The judge who had never used, much less programmed, a computer was convinced the code had to be a 100% copy of Lotus’s code for it to be able to do that.

Another problem is large companies collect a large array of patents, not so that they can develop them, but purely so they can harass competitors who accidentally use them. Groups of large companies form cartels. They cross-licence their patents so they can develop freely, and use their amassed collection to keep all other competitors out of the business area. Patents become a tool for general monopoly not just a single product monopoly as intended.

Companies collect patents for self defence. If someone sues them for patent infringement, they can often find some obscure patent of theirs the suer is inadvertently using, and either settle or make them back off.

Reform

I think the following reforms are needed:

• Public posting. The public should get a chance to point out prior art, or why an application is too trivial to rate patent, before the patent is granted. The problem is with phony patents, prior art, or patents that have no innovation or are utterly obvious. They problem is detecting these bogus patents before they are issued. Fighting a bogus patent after it has been issued is very expensive, especially if the patent holder has deep pockets. The company applying for a patent does everything in his power to bamboozle the patent clerk into thinking the patent is valid.
• Everything today changes more quickly. Depending on how rapidly an invention is likely to become obsolete, its period should be reduced.
• Use or lose it law. People should not be able to do nothing with a patent except stop others from using it.
• The patent office should be able to reject a patent simply because the language is too obscure.
• We need special purpose judges to adjudicate patent law. Primarily judges need specific knowledge of the technology, not fine points of law.
• There is a difficult balance. Consider what you should do if a company creates an AIDS (Acquired Immuno-Deficiency Syndrome) drug, then decides to sell it for $100,000 a year when it costs them $10 to produce. At the time it is the only AIDS drug available. On one hand, you want to smack them senseless for their greed and callousness. On the other hand you want to applaud their chutzpah since it will attract all kinds of further investment.