11.05.08
Ideas Are Not a Property, Devices May Be
“IP is often compared to physical property rights but knowledge is fundamentally different.”
ONE of the best writers on the issue of intellectual monopolies, among others like Mike Masnick, is Glyn Moody. He has no mercy when he sees an unjust system and yesterday he published this post in IDG about patents and the notion of “property”.
As long-suffering readers of this blog will have noticed, one of my favourite hobby-horses is that the whole idea of “intellectual property” is a trick, designed to plug into the warm and fuzzy feeling most people have about the idea of property, and aiming to cover up the fact that what we are really dealing with here are intellectual monopolies – of which few people are fans.
Also from Glyn, a prelude to another financial collapse caused by paper-thin monopolies? It seems possible. As pointed out in the comments, however, not patents are involved, but something a little more reasonable in this case.
The fact remains that the system was corrupted to the point where simple abstract ideas can be considered ownership, but this era appears to be ending, eliminating along with it billions of dollars in imaginary assets.
Your Business Method Patent Has Just Been Invalidated
[...]
This ruling raises a ton of questions like that across literally thousands of patents. And it is a good thing too because business-method patents tend to be overly broad and abused.
Dana Blankenhorn puts forth the assessment of Bruce Wieder, who comments on the impact of the Bilski ruling [1, 2, 3, 4, 5, 6, 7].
“Because there’s no categorical exclusion of these things they probably ought to look at those individual patents to see if they have any value. But you have to look at it patent by patent.”
That’s the word from Bruce Wieder, who heads the patent practice over at Dow Lohnes PLLC in Washington. As always this new legal decision is really great for lawyers.
So what will they be looking for? According to Wieder the court set a simple test. “Business method patents must be tied to a machine,” one that does real transformations of something. You can’t just patent the idea.
For software it’s the same thing. “You have to look at what the software does.” The court gives the example of a machine that cures rubber. You can patent the machine, but not the software timing the process.
The world is at least moving in the right direction. It has been a long time since that last happened. █
WIPO (World Intellectual Monopolies
Organisation), Geneva, Switzerland
Highlight: Novell was the first to acknowledge that Microsoft FUD tactics had substance. Novell then used anti-Linux FUD to market itself. 
Highlight: Xandros let Microsoft make patent claims and brag about (paid-for) OOXML support. 
Highlight: Linspire's CEO not only fell into Microsoft arms, but he also assisted the company's attack on GNU/Linux. 
Highlight: Microsoft craves pseudo (proprietary) standards and gets its way using proxies and influence which it buys. 
Highlight: The invasion into the open source world is intended to leave Linux companies neglected, due to financial incentives from Microsoft. 
Analysis: Xen, an open source hypervisor, possibly fell victim to Microsoft's aggressive (and stealthy) acquisition-by-proxy strategy.
Jose_X said,
November 5, 2008 at 9:58 pm
Some patent machine madness and a possible way forward:
I was going to mention earlier that if general purpose computers with attached peripherals end up being ruled as legit machines depending on the patent, then would it be acceptable to put the thing together on your own if you own the various components already using them for legal uses? Note that the software itself would not be patentable. [See example here http://boycottnovell.com/2008/10/30/bilski-decision/#comment-32129 ]
One argument is that it would be illegal, ie, the combination would be a patent violation, but then that would seem to mock the idea of a patent since a patent would be granting a monopoly to something whose components would be fairly well understood/unprotected “inventions”.
One ruling recently said you couldn’t put together two obvious items in combination and get something patentable, but what about 3 or 4? If 1 and 1 obvious leads to obvious, then 1 and 1 and 1 is obvious by induction. Ie, 1 and 1 was shown to be obvious, so now that same 1 and 1 together with another obvious 1 would also be obvious, at least it would once the first two were put together.
This argument might point to how courts might ultimately rule. A combination of 3 obvious items might be non-obvious if no one could find an intermediate obvious use for 2 of these or if such use would have the addition of the 3rd item be non-obvious.
The value here is that perhaps existing patents can be shown to be “obvious” if we can break down the invention components into a series of steps, all such steps shown to be obvious constructions from the 2 component parts. This would apply to all patents.
Patent laws are horrible. They kill growth and cleverness in people for the sake of giving the first person to put that combo together (and file for a patent) a monopoly for 17+ years. Imagine if every person coming up with a mathematical theorem patented it so that no one could leverage that theorem in their own future proofs for 17 years. That would kill mathematics and science and much more as we know it. But why not allow it for mathematical algorithms yet then allow “inventors” to gain that huge anit-social power grant when they make some aspect of the invention physical/machine? Why kill technological advancements? Frequently, it’s actually the abstract ideas/algorithms the ones that require the greatest craftiness. So we don’t allow patenting of the truly difficult for the sake of social advancement in math etc, yet we then allow the patenting of the frequently more obvious physical device inventions [though maybe this won't be allowed in the future if we can show a clear "proof" to the courts as indicated in the earlier paragraphs above].
Presumably a just reason for granting patent monopolies would be that further advancement along those lines would not be likely in the short term (17 years) and we would want to help subsidize the investments that led to such a discovery/invention. I think this would make some sense for some of the inventions that have been patented over the years. But then this fails horribly for sw patents for the most part (if not in all cases) because the sw industry has shown that basic inventions and inventions supported by past inventions happen frequently — lead to better products for end users frequently. Meanwhile, FOSS has shown these inventions have real value to users/society and to businesses (eg, Red Hat) at *nominal costs* to those contributing to the development.
A basis for granting any patents should be that it could not be used to restrict products if those products could be shown to be derivable and mass produced at a low investment by those (eg, inventors) taking part. For example, if they came up with the invention pretty much on their own (and can show clear progression of evolution of ideas) and at an affordable cost and could then get it into the hands of users also affordably.
I think future arguments before the courts (and before Congress, if laws need to be adjusted) should focus on the unaffordability condition and on the lack of a clear recipe understandable by many practitioners as two prerequisites for granting a patent and for validating a granted patent. Perhaps, based on the recipe and cost functions, if a threshold was met and the patent was granted/upheld, a suitable monopoly period and potential royalty conditions would be determined by the PTO/courts ..or perhaps these limits and allowance would only be determined by the courts (not the PTO), once a challenge was filed, in order to help relive the PTO of such burden for each patent granted.
Jose_X said,
November 5, 2008 at 10:37 pm
I added a bit more explanation within a comment titled “Affordability or having been broken into clear recipes should trump patent rights” here http://www.groklaw.net/article.php?story=20081105132651542#comments