Patently Obvious

Every teenager with a computer likes to whine about their contempt for copyright, especially as it applies to music and movies. But to get upset about patents, you pretty much have to be a hardcore geek. Which I am.

Let me start out by saying that I like patents. The guys who wrote the U.S. Constitution took the trouble to authorize the Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The Patent Office does this by requiring the inventor to give them all the specifics of how their thing works, so that when the patent expires, everybody will have the info they need to copy it and improve on it.

The alternative is that people would routinely keep their inventions secret, not just for the period of time that it took them to recoup their investments and put away some money for retirement, but indefinitely. By providing the carrot of temporary patent protection, the government entices all of this stuff into the public domain. It's a perfect compromise between the mercantile capitalists and the "information wants to be free" crowd, because it gives them both what they want.

But the patent system isn't working right anymore. Patents are being awarded for things that simply shouldn't be covered by patent protection. Companies are filing for patents on everything they produce, to give them ammunition to sue competitors. If you don't patent all your inventions, someone else might, and then you won't be able to use them. And the terms are far too long.

Back when Congress created the Patent Office in 1790, the term for a patent was 14 years. It was later increased to 17 years. Now certain kinds of patents can last 20 years. Hint: this number is moving in the wrong direction.

In the 18th century, technology advanced at a leisurely pace. If you invented a new kind of stove, you could profit from being the exclusive supplier for 14 years and developing a customer base and a commercial reputation. At the end of that term, your competitors could start selling the same kind of stove... and it would probably still be "state of the art", or at least competitive. In other words, formerly-patented inventions were still useful. But in the 21st century, 14... no, make that 20 years is like an epoch. Apple probably got some patents on the hardware used in the original Macintosh 20 years ago, technology which is now so hopeless obsolete that it's useless. Worthless.

Patents need to expire more quickly.

They also need to be handed out more carefully. Amazon got one for "one-click shopping" and another for the use of cookies to store data in your web browser. A guy sued the Red Cross for violating his patent on accepting donations online (and only lost because someone dug up "prior art" that showed UNICEF had done it before he filed his patent). Microsoft just got one for having the length of time you hold down a button determine what it does... effectively patenting both the double-click and Apple's answer to the right-click: the long click. The law actually says that patents aren't supposed to be awared for things that are trivial, or obvious to anyone working in the field. But they are. Apparently because patent examiners are overworked and underqualified, and other fundamental flaws in the process (e.g. examiners' job performance being evaluated based on the quantity - not quality - of their decisions).

Software patents can be especially problematic. Microsoft is filing patents galore to prevent competing software (especially Linux) for being compatible with their upcoming "Longhorn" version of Windows, and the supposedly-open XML data formats for future versions of Microsoft Office. So not only will their software fail to comply with open standards, it'll be against the law for other developers to use Microsoft's proprietary standards.

There's an article on Groklaw about a report with suggestions for how to fix the patent system. I wish them luck.