Mad Dog 21/21: Patent Lather
April 17, 2006 Hesh Wiener
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 patentes or 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.
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. U.S. 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. Speed matters because patents lapse, and this way the knowledge contained in a patent can advance the general state of an art more quickly. You snooze, you lose.
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.
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 European Union 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 on 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. (The executives from SAP, Intentia, International Business Systems, and myriad open source vendors with commercialized products would probably argue with that statement, but these companies do not stack up against Microsoft, Oracle, IBM, and other larger American software companies. SAP is the exception, not the rule.)
Even if Europeans don’t want to adopt a patent system for software that is, in effect, based on U.S. law and U.S. 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.
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 U.S. 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 that 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 U.S., 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 that, whatever they have said about Iraq, they might have to do without oil.