Introduction
How do you protect inventors from the shameless copying of their ideas? It’s a problem that’s been with society for centuries, and has increased in scope as technology has made that copying easier.
To encourage creativity, society has developed two solutions that work in parallel. Copyrights are designed to protect the creator of an original work. The author of a book holds copyright in that book, and can assign their copyright to someone (a publisher, a movie maker). Generally, one doesn’t need to register that right, it is automatically given. If you want to republish this blog, you need to ask me as the copyright holder. I should also note that I intend to publish a separate article addressing how copyright operates in the modern world.
The other method of protecting creativity is the patent, and it operates slightly differently to copyright. Patents aim to protect inventors, by granting them exclusive use of their invention for a specified period. From Wikipedia, “The term patent usually refers to an exclusive right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application[1]”. A patent must be applied for, and generally proof must be supplied regarding the originality of the invention. In some cases, where effectively the same item has been invented simultaneously, it is necessary to show priority – who got there first.
The history of invention and of patents
People have been inventing for millennia, and for the majority of that history the only benefit to inventing was being the first to market. As soon as one person invented a telescope and published the details of how to make it, anyone could go ahead with it.
This gradually changed, as inventors sought the advantages association with invention and as problems were put to inventors to solve. So for instance, governments sponsored the development of a required technology by issuing an exclusive licence to the creator. These exclusive rights were offered along-side, or alternatively to, prizes for specific inventions.
Eventually patent offices were formed to review, record and manage applications for patents. The breadth of patents was expanded to include processes (or methods), detailing how to achieve an end. Patents can also be developed that rely on other patented objects or processes. In the world of modern technological innovation, one product may involve dozens of patented inventions, with the associated need to obtain permission (licence) from the patent-holder to use their patented invention. This licence is often subject to the payment of royalties, or a bulk amount.
Current patent law provides for an inventor to benefit from his, her or its invention for a period of time (20 years in Australia and the United States).
Very importantly, you don’t need to present a working model of your patent to obtain protection.
You can’t patent ideas, you can patent processes
Okay, this is where patent law gets a bit weird and complicated, and I’m relying in part on an article in IP Watchdog[2] for the information I present here. You can’t protect your own ideas with patent law. You can protect them to a limited extent with copyright law, which stops others from reprinting what you’ve written. Copyright law doesn’t stop anyone applying your ideas, though.
What you can patent is a process. So for instance, you can patent the idea that someone could shop on the web via a process of looking at items, clicking to put them in a “basket”, going to a “checkout” etc. Once that process has been documented in detail, you can apply for a patent for an original process (actually – sorry, it’s already been done so it’s no longer original and unique).
Trouble up ahead
There’s trouble in patent land, unfortunately, on a few fronts.
Patents are registered with a patent office. The patent office is required to examine the patent to ensure it meets the legal requirements, but with enormous numbers of patents applied for are often unable to detect that a process is not original or unique.
Once registered, a patent can be enforced unless a court strikes it down (for instance on the grounds that it is not original or not unique). Unfortunately, to get a patent struck down costs a great deal of time and money. So a company or individual can own a great deal of patents that have never been exhaustively examined, and use these to claim royalties or compensation from people or companies that have unknowingly breached the patent. It often costs more to appeal against the patent than it does to pay out the amounts demanded. So people pay.
Patents are often extremely broad in nature. This can serve for or against the holder. In the case of Apple and Samsung regarding the Samsung Galaxy Tab 10.1, the public perception is that Apple appears to be defending a patent that defines a “tablet” so broadly that any potential competitor in that market space is unable to develop a competing product. This can be risky, as the entire patent may be struck down once the case is presented in court. If successful, though, Apple may well be able to corner an entire segment of the portable computing market for years to come.
Another company that appears to be attempting to enforce extremely broad patents is Lodsys LLC[3]. It holds four patents, and has claimed that a large number of small companies and individuals that have developed applications for Apple’s iOS are operating in breach of its patents. It has also subsequently sued several larger companies for breach of patents.
There are companies that buy large numbers of patents with the sole business purpose of collecting royalties. These seek to identify infringers and collecting money from them. It has been suggested that some companies in this business have deliberately targeted smaller companies, as they are less likely to have the capacity to defend themselves against any claim and instead will simply pay a royalty.
What’s the problem?
The problem with patents, as described, is they are not encouraging and protecting innovation.
A company whose sole business is purchasing a patent from the inventor and then searching for anyone who’s breaking it isn’t serving consumers. It is increasing the costs of inventions that in many cases have been developed independently.
A patent that’s too broad can devastate an entire industry sector, as appears to be playing out in the market for tablets. Instead of patenting something that is entirely unique and new, patents are increasingly broad descriptions that eliminate competition.
A patent that describes something that doesn’t yet exist (hasn’t been successfully built) stops innovation in its tracks by telling the rest of the world that this area of development is off limits.
Patents on genes have been popular in recent years. What? Who’s been inventing genes? Well, nobody – and fortunately courts are beginning to see that and strike down those patents. But the problem goes further, as companies patent naturally occurring products, in many cases that have been used for centuries by native populations, for use in pharmaceuticals.
Twenty years is a long time in some industries. In the computer and electronics industries, several product cycles have been and gone in that time. But a patent may still be active from the first generation of a product that continues to relate to a part that’s used in the fifth generation. That is, patent law doesn’t consider the pace of change and adapt its timeframes to that pace.
The solution?
Society (governments, citizens and corporations) need to revisit the purpose of patents and rewrite patent law to better match that purpose. With that in mind, I have the following proposals:
1. Strengthen the role of patent offices, and fund them adequately. It is clear that one of the failings of the current patent system is due to the lack of time available to review each and every patent;
2. Separate treatment of patents held by individuals or small businesses from those held by large corporations. It is clear that a patent law that is the same for all doesn’t treat all fairly. This separation of how patent-holders are treated will become clearer in my other recommendations;
3. Place the onus on the large corporation that owns a patent to prove that it has been broken or is valid, rather than on the defendant. That is, don’t let the law say that a large enterprise can effectively bully a smaller one into paying protection money;
4. Place the onus on the large corporation that breaches a small enterprise or individual’s patent to defend itself. This is similar to my third recommendation – we need to recognise where power lies and protect against that power;
5. Use it or lose it (for large corporations). Either apply the patent yourself, in your own products, or lose the right to the protection of patent law. This would prevent patents being a business unto themselves, which defeats the purpose of encouraging innovation;
6. Award patents only when the invention can be clearly demonstrated. This prevents a pie-in-the-sky approach to patent application;
7. Remove patent protection of processes. You call it a process, I call it an idea. It doesn’t fit within the patent system. If processes really need protection, find some other form;
8. Establish patent categories, with different lengths of protection. A patent for a new computer chip doesn’t need the same length of protection as that for a new mouse trap – the computer industry moves a lot faster than the mouse trap industry;
9. Simplify the patent registration and appeal processes. It needs to be possible for an inventor to register their patent cheaply and easily. Similarly, once said inventor discovers that they may have stumbled into territory covered by someone else’s patent they need to be able to appeal where necessary; and finally
10. Get rid of the idea of “first to conceive/first to register”. As patent law stands at the moment it does not recognise that two people can independently invent the same thing. This doesn’t reflect reality, where in fact the same invention has been made separately many times in history (the transistor radio is just one example). Law should recognise reality.
[2] “Protecting Ideas: Can Ideas be Protected or Patented”, by Gene Quinn. Accessed at http://ipwatchdog.com/2010/11/23/protecting-ideas-can-you-patent-an-idea/id=13495/ on 9 October 2011.
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