Patents and Intellectual Property
There are now a lot of people who are objecting to patent law, using slogans like "Information wants to be free". (Which is silly: information shouldn't be anthropomorphized, and information doesn't want anything.)
What a lot of these people don't understand is that patent law is the great success story in opening up proprietary technology. That is its purpose, and nothing has been found which does it better. Patent law is extremely subtle, and its real purpose isn't obvious to anyone who looks only at the short run.
Consider for the moment the position of an inventor without any patent law. Why should he reveal what he has created? If he does, then his competitors can duplicate it, and he gets nothing for his brilliance and hard work (and usually considerable investment). In this situation, he wants to keep as much of his invention secret as he can, for as long as he can.
But even then, he's not out of the woods; because simply by analyzing copies of his invention, his competitors may be able to duplicate it.
Patent law offers him something important, but at a high price. If granted a patent, then he gets exclusive ownership over the technology for a limited duration, and has the privilege of preventing others from making things which work the same way even if they are created independently. But in exchange for this, he pays the following prices: he agrees that the technology will enter the public domain in 20 years, and he has to explain in public exactly how it works so that when the patent expires others can duplicate it. And this was deliberate; it was the purpose of patents from the very beginning. The goal of patents is to encourage inventors to reveal how their inventions work and to release that intellectual property into the public domain.
But to convince inventors to do this, it's necessary to give them something in return. The 20 years of exclusive rights to the invention are the prize which makes it worthwhile for an inventor to reveal how the invention works. 20 years is not a long time, and in the long run this causes technology to expand faster.
Patent law is enshrined in the US Constitution for precisely this reason. As short as that great document is, the founders felt it important to include granting of patents as one of the capabilities of the US Government, because they had observed how valuable patents were toward economic and technological progress. Even 200 years ago it had become apparent that countries with strong patent laws tended to flourish relative to the ones which didn't.
Hence the paradox: I support patent law because I want as much technology in the public domain as possible. And nothing has ever been found which is more effective at moving proprietary technology into the public domain.
Which is not to say that a patent prevents innovation even while it's in force. It's possible to challenge a patent on numerous grounds, or to demonstrate that your device doesn't infringe a patent. A patent consists of two substantive portions amidst all the boilerplate: the description of the invention and the claims.
The description of the invention is the reason that patents open technology, because it must be sufficiently detailed to permit a person "skilled in the art" to reproduce the invention without further information. Thus when the patent runs out, everyone can and will make their own. Indeed, one way a patent can be challenged is by demonstrating that the description of the invention is incomplete or not sufficiently detailed so that it can't be reproduced. But that doesn't happen often.
The legal protections offered by a patent are embodied in the claims. These are a sequence of statements which describe the aspects of the invention which are to be protected by the patent, along with reasonable applications and extrapolations of that invention to other reasonable applications.
Usually this consists of a series of base claims, each followed by progressively more expansive "derivative claims" based the base claim. This is done for legal reasons; if one of the derivative claims is challenged successfully then the base claims and some of the lesser derivative claims may still stand. So the claims are sort of like the skins of an onion, or successive walls of a fortress, providing a series of fallback positions. On the other hand, if you can challenge one of the base claims, all the derivative claims fall. But this is harder because the base claims are quite restricted and are scrutinized very carefully. Here's a totally fictional example:
So, from the hypothetical invention of a pushbutton, they try to claim control over nearly all computer user interfaces. This is a little over the top, but I've seen worse in patents. Another reason for using a series of claims like this is to see how much you can sneak past the patent examiner. He might grant 1-3 but not grant 4 or 5.
So, we've worked our fannies off and created a device and started shipping it, and then one of our competitors points out a patent they have. What next?
This happened once at a company I worked at, and I was handed the patent and told "Do your best." So I read it in detail, analyzed it carefully, and then composed an analysis of each of the 42 claims in it and showed a plausible case for why we weren't in infringement of that claim. I was able to make a successful case; I never was asked about it but I later saw something written by our lawyer (who never felt the need to talk to me) which echoed my conclusion: we were not in infringement of 41 of the claims, and the 42nd was "overly broad". I guess the other company was convinced as well, because it wasn't necessary for us to go to court and we did continue to ship.
I've been involved with patent law as long as I've been an engineer, both in working with lawyers while writing patents of my own and in challenging patents from other companies. I'm not a lawyer but I now know enough about the fundamental law to discuss it intelligently. Here are the main ways of demonstrating that you're not infringing a patent:
All the other approaches come down to trying to demonstrate that the patent is invalid and was issued by mistake. That's more difficult; the patent holder has more to lose and will defend it more vigorously. "Doesn't apply" means that we're not infringing but it leaves the patent in place. Any successful challenge takes away the patent claim entirely, not merely as it applies to us but as it applies to everyone. Obviously the patent holder takes a dim view of this.
In the case of the patent I analyzed that one time, I was able to directly challenge all but one of the base claims on the basis of "Doesn't apply", and that last one on the basis of it being "overly broad". In each of the former cases what I wrote was a detailed explanation of what the claim actually meant, and then show how what we had done was outside of it. My "overly broad" claim was more a matter of judgement and I simply suggested it as grounds. My write-up was intended for our lawyer. He apparently thought it made sense because he said the same thing in the letter we sent to the other company. They evidently didn't feel like pushing the case; my technical arguments on all the points except one would have stood in court, and they risked losing the last one if we had successfully convinced a judge it was "overly broad". Better to simply let it go.
Even during the period of protection, patents usually don't lock up technology. It's rare (although completely legal) for a company to hold its patents closely and refuse to license them, the most common example of this being the Polaroid corporation's patents governing instant film. Far more common is for patent holders to license those patents freely in exchange for royalties or rights to patents owned by others. And they can do this without fear because they retain their rights under the patent. If they were not protected by patent, they'd be much more fearful of doing this. Therefore, even in the short run, the protections offered by a patent facilitate the sharing of technology.
So patent law encourages the creation and distribution of technology by encouraging inventions and by encouraging the inventors to reveal how those inventions work, and best of all by encouraging those inventors to release their inventions into the public domain. What's not to like?
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