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Another Perspective


A while ago, in 1449 to be precise, King Henry VI of England issued a written proclamation bearing his official seal that for 20 years granted Flemish-born John of Utynam the exclusive right to make stained glass using his special process.  Many other similar declarations, called litterae patentesor letters patent, meaning open letters, followed, each granting a monopoly to its holder.  Only some went to inventors.  Then and now, not every invention is patentable.  In the Elizabethan era, you couldn't patent a toilet bowl; today you can't get an unequivocal patent on software in Europe.  In both cases, content is a factor.

From the very inception of the concept, governments have granted patents to secure for inventors certain rights in their inventions, rights that are intended to provide benefits to the inventor, to the granting government, and to the people of the granting state.  The concept of invention, as understood in the context of a patent, is a device or apparatus or process that is new and useful.  You can't patent something that's been around forever, like the wheel, but you can invent a new kind of wheel that makes cars safer and that might be eligible for a patent.  You can imagine inventing a very small, intelligent scissors, but until you can build a nano nose hair clipper, you cannot seek a patent for it.

Queen Elizabeth
Elizabeth I
Protected her own throne, but not an inventor's

The idea of novelty in patent law is a lawyer's concept.  In every country except the United States, a patent will be granted to the inventor who files an application first, whether or not the object of the patent was the first to develop the device or process that is the subject of the patent.  US law currently favors the first inventor, but this law is in flux and most likely will eventually support the first filer instead.  The reason for what, to an ordinary person, must seem like an unfair practice, is that the purpose of a patent is not only to protect an inventor but also to encourage prompt public disclosure, so initially under license and after a patent lapses without any conditions the knowledge contained in a patent can advance the general state of an art.

You might wonder whether this situation would lead to some abuses.  The answer is that of course it has.  For an example of an invention with a very complicated history, you have to do little more than keep looking at the screen before your eyes this very minute, if it happens to be a CRT.  During the twentieth century the best ideas for a television set came from one Philo T.  Farnsworth, but he was just a fellow from Utah with modest means.  The patents that made the big bucks, particularly when America started buying televisions like crazy during the Korean War, were the ones owned by RCA, at the time one of America's top companies.  For a long time, RCA and its lawyers crushed Farnsworth, but Farnsworth survived.  Ultimately, Farnsworth's ideas led to the development of the Sony Trinitron picture tube, which played an important role in the ultimate decline of RCA.  If there's a lesson about corporate hubris in the complicated story of television, Sony failed to heed it when it tried to use its Betamax patents to defeat rivals in the videotape trade and as a result was humiliated by the ultimate success of the VHS system.  Often, it turns out, the use or abuse of patents guarantees nothing.

Even patents filed in good faith by sincere inventors may be invalid, and there are legal mechanisms to challenge suspect claims.  But most patents, despite a surfeit of legal boilerplate and impressive efforts by patent lawyers to obfuscate the details of an invention, and notwithstanding opposing interests, survive and do precisely the job they are intended to do.  It is, however, a safe bet that the more arbitrary the governance of a nation, the more likely it is that its patent system is unwise, unfair, arbitrary, or corrupt.  Yet even wise, just, deliberate, and relatively honest governments have patent systems that sometimes yield results that are better disputed than accepted.  Like every other aspect of the society, with patents the devil often lies in the details.  If the patent system is imperfect now, after more than five hundred fifty years of experience, imagine what it was like in the fifteenth century.

While the English were granting patent rights as an exercise of royal prerogative, the Venetians were thinking about some of the same issues.  Like the English, they recognized that there were benefits to the state if inventors could prosper with the help of government protection.  Unlike the English, the Venetians decided, in 1474, to embody their concept of patent rights in law, making the process somewhat less arbitrary.

The English and Venetians may have differed in method, but their aims and the aims of all subsequent methods of patent protection were similar.  English and Venetian patents both took the form of a bargain.  The inventor got the exclusive right to exploit an invention for a set period of time.  In return the public was told of the invention was and something about how it worked.  The consequence, when the term of protection expired, was to open the invention to one and all.  But in England, unlike Venice, it took a while before patent rights granted to inventors were distinguished from monopoly right granted for other reasons.  And the process remained arbitrary for quite a while.

Philo T. Farnsworth
Philo T. Farnsworth
An inventor of television whose patent claims
were crushed by RCA's lawyers

After 150 years of granting patents, the English crown, in the form of Elizabeth I, refused to issue a patent for a toilet on the grounds that is would be an impropriety to do so.  The current English monarch, Elizabeth II, won't allow software packages to be patented in her name, and not because Windows has more bugs than a bog in the Buck House basement, but because software does not have the characteristics of a mechanical invention, a chemical substance, or a special method (such as an industrial process) used in manufacture that would qualify it for a patent.  (There are also design patents, but they are a different matter entirely, and the use of the term patent in connection with designs is unfortunate and confusing.)

In a limited way, under some conditions software can be patented in the USA, but the law is not entirely settled.  The inception of software patents came when embedded software or firmware became a vital part of an invention.  While it may be relatively easy to see that an application written to run on any Linux system is not a part of that system (some or all of which might be subject to patents), it also may be clear that the firmware inside a disk controller's microprocessor is as much an integral part of that controller as a solid state circuit.  In between these extremes there is a gray area.

Lots of software patents have been granted, but few have been rigorously tested in the courts.  Where there have been big disputes between competing companies, each holding patents on overlapping software, a solution has generally arrived in the form of a negotiated settlement.  And while there have been claims of software patentability in Europe, there is still no basis in case law either for or against the concept of a software patent.

To make matters even more uncertain, there is an ongoing effort by software companies to extend patent protection to software within Europe.  This effort is unlikely to succeed as long as the EU remembers that it is a net importer of software that might stand a better chance of withstanding predation by foreign software companies if it keeps the software business as open as possible.  Lawmakers may differ about the way national interests (and, in the case of the EU, regional interests) that lie at the foundations of patent law should be evaluated, but they agree that patent law is an element of political and economic policy.

European legislators will evaluate the issues surrounding the legitimacy of software patents not only the basis of prior law and the arguments or interested parties on one or the other side of the issue, but also on the basis of the impact any law will have on the price and availability of something that is as vital to Europe's prosperity as oil.  Europe can hold its own when it comes to inventing patentable pharmaceuticals, and it gets a comfortable share of business in many other areas of technology, but when it comes to software Europe is still in its youth, and its interests may best be served by sticking with the less restrictive regime of protection offered by copyright.

Even if Europeans don't want to adopt a patent system for software that is, in effect, based on US law and US interests, they certainly benefit from one aspect of the patent process that spans all patentable technologies: disclosure.

The requirement for disclosure is a key element of the patent process in every country and has been in every age (although the details vary).  Disclosure is what an inventor must exchange for the legal protection for a patent monopoly.  The disclosure has a worldwide effect, even if the patent does not.

Patent rights are national in scope.  Unless extended by international treaties, patent rights don't cross borders.  So far, international patent treaties have at best given patent holders in one country a brief period of protection during which they can file in others.  Patents are also quite specific, governing a particular invention but not a concept.  You may be in violation of law if you manufacture a patented mousetrap, but if you build a sufficiently different kind of mousetrap, you're in the clear, and you might even be able to patent it.

Because disclosure is part and parcel of the patent process, patents turn out to be an inappropriate way to protect some kinds of intellectual property.  Many industrial processes that could, in theory, form the basis of a patent, are never patented because their developers believe there is a greater advantage in keeping the process a secret than disclosing it in the course of obtaining patent rights.  The formula for Coca-Cola, for example, is a trade secret; had it been patented, it would long since have been copied.

Similarly, there are many wonderful stories that seem to have similar or identical plots.  You cannot patent a story.  What you can do is obtain a copyright, which protects the specific way a story is told.  The same concepts govern copyright protection of music, a database, and other forms of information where the value is in the content rather than the concept.

First, seduce all the lawyers

Like the recipe for Coca-Cola, inventions that may be patented have to be original.  This was most likely the case back in the fifteenth century, and it is certainly the case now.  Moreover, patents must have a basis in fact.  To obtain a patent, the inventor must not only document an invention with prose, diagrams, or models, but also be able to show, to the satisfaction of patent examiners, that it does what it claims to do.  You cannot patent a perpetual motion machine, because such a machine is a physical impossibility.  In addition, under US laws but not the laws of other countries, you have to show that the patented device or process does something useful, which turns out to be a very weak requirement and requires little more than a cogently expressed assertion.

In contrast, a copyright protects the author of an original work, so novelty is a factor, but the new work does not have to be based on new ideas.  The text of yet another article on patent law can be protected by copyright even if the article is the zillionth rehash of notions that have been well discussed in print for hundreds of years .  .  .  as long as the wording of the article itself is original.

Software and data can be similarly protected, and just as people (or, if not people, lawyers) might argue about who was on first with The Da Vinci Code, so, too, they may differ about the rights to an operating system or an accounting program.  But copyright doesn't stand in the way of one party writing a program that does what another, copyrighted work, does, as long as the code is unique.  That's how we get (or fail to get) better browsers even when Microsoft tells us the Internet Explorer 6 is tops (and even as Microsoft scrambles to create a better browser of its own).

Patents, to the extent they can be applied to aspects of software, at least in the USA, can reach places copyright cannot.  Recently, a patent dispute threatened to shut down Blackberry, the wireless email system.

Because Blackberry gadgets and services are immensely popular among lawyers, including, apparently, hundreds of government lawyers, the pressure on all the parties to come to some kind of solution that would keep Blackberry going no matter what was enormous.  It showed the power of patents, including software patents whose very validity is uncertain.  It also provided an example of how gadgets corrupt and gadgets with killer applications corrupt absolutely.

Telling government lawyers they might have to do without their Blackberry service was like telling members of congress facing an election, whatever they have said about Iraq, that they might have to do without oil.

When you think of rights granted by law, such as the right to express your opinion, you usually think in positive terms.  Positive rights guarantee freedom of action.  If you're willing to obey some rules and follow some procedures, you can own some property, you can drive a car, you can publish an article about patents that includes controversial opinions.  Patent rights are different.  They are negative rights.  They allow you to restrict the activity of others.  There are other negative rights in the law of course, such as the right to exclude others from your home.  But few negative rights have the big financial impact of patent rights, as the recent Blackberry affair demonstrated.

Patent rights are generally exercised within a framework of civil law, and parties whose patent rights are proven to be infringed generally seek compensation in the form of money damages and court orders prohibiting further infringement.  But this is not always the case.  There are cases in which parties who violate patents are sent to prison.  So, while individuals or legal persons (like corporations) are the usual holders of patent rights, violations can be punished by both persons and by the state.

U.S. Patent Office
U.S. Patent Office Circa 1870
Patents are so important to governments that the Confederacy
set up a patent office during its failed revolution

The involvement of the state in patent rights to the extent that governments the world over criminalize infringement isn't surprising.  Going back to the English, whose sovereigns granted monopoly rights for a variety of reasons, including invention, the financial benefits of monopoly were immediately apparent not only to inventors and to persons who took to heart the interests of the state, but also to greedy and corrupt rulers.  England didn't transform the right to grant patents from an arbitrary royal prerogative into a matter of law until 1623, during the reign of James I, when Parliament enacted the Statute of Monopolies, which among other things provided a 14-year term of protected monopoly for inventions even as it curtailed the opportunities for monarchs to profitably make patent deals in cahoots with monopolists.  By that time, England had gone so far as to issue a patent creating a monopoly on salt.

English patent law was further amended over the years.  One notable change took place during the reign of Queen Anne in the early years of the eighteenth century, an amendment that substantially increased the requirements for a written description of a patented invention.  But, with changes, seventeenth century law served the English until 1977, when it was replaced with a modern statute that harmonizes English patent law with that of other European countries.  There's no radical difference between Continental European patent systems than the English or American systems, but some distinctions do exist.

Europeans have resisted the idea of issuing patents for software on the basis that it's more like a mathematical formula than a machine or process.  In addition, despite their economic cooperation via the European Union, still exhibit nationalism in some instances.  Every European country takes price in its scientists, engineers, and other inventors and wants to reinforce aspects of its economy that generate wealth, attract new business, and add to national pride.  So while every member of the EU sees some advantage in treaties that make it easier for inventors to get multinational patent protection, they also each seem to believe they can offer some localized advantage to inventors. 

Patent laws are only part of various national efforts to encourage excellence in the sciences, and may in fact be secondary to tax laws, educational policies, and other practices.  But every country recognizes that patent laws can play a role in encouraging (or, at times discouraging) progress.

American patent law has its roots in the English law.  During the colonial period, monopolies were protected by grants similar to those of the British crown, but provided by legislatures of the various colonies.  After the American Revolution, congress got down to business, and passed the first US patent law in 1790.  In addition to written documentation, this law required an inventor to provide a scale model of the invention.  In about three years the government decided it was too much work to examine patent applications and a new law pretty much handed patents to anyone who applied.  It took the US until 1836 to resume the process of patent examination, by which time industrialization was a major factor in the American economy.  And the requirement for working models remained in force until late in the nineteenth century.  In fact, the US Patent and Trademark Office can still ask for a model, if it wants to.

Albert Einstein
A Swiss Patent Clerk in 1904
You don't have to be Einstein
to understand patents, but it helps

The biggest new issue in patent law around the world is software.  There are debates everywhere about whether patents should protect any rights in software and if so under what conditions.  These debates are not just arguments among legal scholars.  Patent laws and related policies affect the pace of innovation, and every country wants to give its inventors, including software developers, the best possible climate for work.

As it turns out, the question of whether patents in general stimulate or stifle invention has never been completely settled.

Any argument in favor of patents is an argument in favor of monopoly.  Monopoly might be good for the monopolist, but it might not be very good for those forced to deal with a monopoly, both in a narrow view of the monopolist's business segment and the broader view of a society's whole economy.  Because patents are of limited duration, 20 years everywhere we checked, they don't look like a permanent monopoly.  But in some technologies, including notably pharmaceuticals and software, 20 years, less than a human generation, can be several technological generations.

Additionally, patents can for some purposes be extended.  If, before patent rights lapse, the inventor develops a improvement or variation nobody else could successfully develop because at its inception it depends on the underlying patent, that second patent might well extend the first for all practical purposes.  If that second invention is developed, say, 10 years into the life of the first patent, and if the patent holder does not wish to license the first patent to others who might improve on it, the pair of patents could well create a 30-year monopoly.  It is even possible for the inventor to come up with another kicker and further extend the practical reach of the first two patents.

Often the only way an inventor can work out a deal with another on patents is to come up with a related invention, one that threatens or substantially enhances the other party's patent, and swap or cross-license rights.  This cross-licensing game is standard practice in many industries, and very widely used in computing, where pacts among patent holders have become part and parcel of the trade.  Such pacts are used in at every stage in the building of computers, from semiconductor manufacturing to the fabrication of racks that house server farms.  It's hard for a new player to get into the game without inventing and patenting something the established companies want so much that they will swap their own patent rights for it.

The large sums that are at stake can make for big battles over patent rights.  These battles take place in the courts, and the body of case law that has evolved surrounding patents makes for complicated and uncertain litigation.  That situation by itself affects the role of patents in economic society.  It makes invention a high stakes game.  It can force the little guy, the next Philo T.  Farnsworth, to hook up with partners whose wealth may provide protection but at a substantial cost in the spiritual independence from which invention springs.  Laying the golden egg may make the goose barren.

The result is a world in which various parties not only argue about whether patents as a concept are good or bad for a business, a nation, or the world economy, but also disagree about what should or should not be subject to patent protection, how long the protection should last, and how patent disputes should be settled. 

If you're an inventor with a really good idea, you can't be sure that you'll be rewarded, but it's a safe bet that if you are, you'll also be punished.

— Hesh Wiener April 2006

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