This Patent Malarkey

I’ve stayed quiet through the current uproar and just listened to the arguments from both sides regarding the pros and cons of patents.  The ongoing battle being waged between the big tech players and the threatening of the little guy by patent trolls like Lodsys has been making headlines for what feels like forever.  And these are just the latest salvoes.

I have no doubt that patents serve an important purpose, but while everyone seems up in arms about the current mess, I remembered some storied mentioned by Bill Bryson in his book, At Home.  They serve as an interesting example of how patents don’t do what they’re supposed to: protect innovation.

We’ll start with Aimé Argand, a Swiss chemist who invented the Argand lamp, an improved oil lamp, in 1784.  The lamp was an instant success, providing better quality lighting that was only superseded by the kerosene lamp in 1850.  Argand was awarded a patent in England and France, but was unable to defend it when other manufacturers started making them without licence and died broke at the age of 53.

How about the best-known inventor of them all, Thomas Edison?  Well, Bryson says:

“Edison was not a wholly attractive human being. He didn’t scruple to cheat or lie, and was prepared to steal patents or bribe journalists for favourable coverage. In the words of one of his contemporaries, he had “a vacuum where his conscience ought to be”. But he was enterprising and hard-working and a peerless organiser.”

Edison invented the incandescent light bulb, right?  Wrong, an Englishman by the name of Joseph Swan did.  Edison merely copied it:

“In America, Edison had been working on copies of the original light bulb patented by Swan, trying to make them more efficient. Though Swan had beaten him to this goal, Edison obtained patents in America for a fairly direct copy of the Swan light, and started an advertising campaign which claimed that he was the real inventor. Swan, who was less interested in making money from the invention, agreed that Edison could sell the lights in America while he retained the rights in Britain.” (source)

So the patent system has allowed people to register copies of existing works for a long time, it’s not who invents it first, it’s who patents it first and does better at PR.

On that front, how about Guglielmo Marconi, the inventor of the radio?  Well, again, he didn’t invent it, he built on work by numerous men across Europe and the US, notably Nikola Tesla, Oliver Lodge, and John Stone Stone.  All of whom had produced equipment and made transmissions before Marconi.  It’s doubtful any of Marconi’s patents should have been granted, certainly a number of them should not.

Yet while Marconi received a Noble prize, was made a marquess and died a rich man, Tesla died in poverty.

Another example is Canvass White, who helped build the Erie Canal.  White’s contribution was hydraulic cement, which was key to stopping the water leaking away.  He patented an approved cement having visited England and was supposed to receive four cents for every bushel sold, but the manufacturers declined to share their profits and his claims made through the courts bore no fruit.  He too, died broke.

An example of success, perhaps, is James Watt, an early pioneer of steam engines who did manage to enforce his patents, though not entirely successfully:

“Boulton and Watt never collected all that was owed them, but the disputes were all settled directly between the parties or through arbitration. These trials were extremely costly in both money and time…” (source)

So, while patents have been around for a long time, the system has also been broken for an equally long time.  Patents are fine if you have the money to enforce them, which makes them all but useless to a little firm or an individual, they’re only useful to large corporations, and lawyers.

The latest article I read about patents is from a App developer being sued by Lodsys.  Some choice excerpts from that article (emphasis mine):

A lawsuit could reach tens of thousands of dollars or more, especially when taking into account the legal costs.

Supposedly, something in the free version of his app (it also has a full paid version) uses a process that is owned by Lodsys. It is unclear what this is.

“After giving it a good thought I understand that I am being accused of collecting information (through links on his website and Google’s store) on how users might perceive that buying the full version would be better for them,” the developer told the BBC.

Lodsys patents are cumbersome documents. They are very difficult to disentangle.

“It’s so contrived. It has 74 points,” said David.

Mueller, meanwhile, cannot find anything non obvious in their patents.

He said in his blog: “I can’t see how how reading those patent documents would really put a developer much closer to an implementation than starting from scratch. If a developer decides to provide an upgrade button in his app, there’s really nothing that those patents teach that a reasonably skilled programmer couldn’t come up with on his own.

“The patent Lodsys has is about a concept.”

Moreover, Florian Mueller says, “it’s actually questionable whether Lodsys’ patents would survive a well-funded effort to have them declared invalid.”

“There might be prior art; it might be possible to prove that it fails to meet the non-obviousness criterion; one could also argue that it’s not patentable subject matter because it’s too abstract,” he posted.

Apple and Google are fighting the patents in their own ways, but these are likely to take years and there’s not guarantee of success (although most experts think they will succeed).  Not much use when small app developers have been given 21 days to make a deal or go under.

I’m not saying we need to get rid of patents, but the system needs an overhaul.  For starters they need to be made cheaper to enforce.  Second we need to get better guidelines for what can be patented.  Ideas, no, specific processes and techniques, yes.  I would also suggest we make patents non-transferable.  Whoever registers them is the owner, if they go out of business they revert to the public, that will stop patent trolls.  I think patent offices need better training and more funds and I think we need a faster way to throw out void patents and perhaps an ongoing review process.  Certainly the cost of defending oneself needs to be reduced otherwise the system is open to bullying.

At the moment patents only protect business big enough to enforce them or who have other patents they can use to defend themselves.  That doesn’t encourage innovation, it makes everyone afraid of it.

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