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Patent flame storm: Reg hack biteback in reader-pack sack attack

You know who else hated patents? Kim Jong-il

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Shannon writes in:

Interesting article, but I think it completely ignores the impact of de facto standardization. Except for Apple, no one is claiming that they have a perfect user interface, but Samsung or ANY other company entering an existing market has to respond to customers' expectations. The customers mostly want to do it the SAME way, and it's really hard to convince them that ANYTHING else is better than the way they have been doing things.

Standardisation is an interesting one. Standards arise when someone chooses not to assert their intellectual property rights, but much more frequently when parties mutually agree to honour them. An enormous amount of horse trading went on, for example, during the creation of the 2G and 3G mobile patent pools, in which various tech companies agreed to cross-licence the designs of their essential communication systems to each other. Patent pooling, particularly when a market is in its genesis, is useful in avoiding court bouts with rivals.

In other cases the parties agree to waive all rights. In those instances, building on top of something that isn't patent encumbered, or where the patent is not asserted, is sound.

However, it's clearly demonstrably true that wielding patents to stop people copying protected methods obliges them to come up with new methods of their own. This is why patents are so widely supported by inventors, industry and governments. The economic growth that results is unarguable, and for all the considerable talents of Supreme Leader Kim Jong-un, we don't really want to be North Korea.

Reader Shantanu begins with a straw man:

So basically what this article suggests is that innovation cannot happen without patents. That's so correct, there was no innovation before the patent law was introduced.

Er, no. But carry on. I invited Shantanu to have another bite at the cherry:

Well I guess that's the point where we differ. Your prime concern is to make people wealthier, mine is to make public domain science wealthier. Killing engineers' freedom to do stuff, for making more money than what's enough is something I'm not very inclined towards. I always dream of a world where you could think and work about the actual science and tech, instead of making greedy lawyers and businessmen richer.

Which sounds like Richard's point, made above, on the face of it: the confusion of science and industry, by sticking a great big canvas of a generalisation over them both, like Christo wrapping up the Reichstag.

But I thought Shantanu's point about the public domain is an interesting one, and hadn't been made elsewhere. It leads to an even more interesting set of observations.

I do want society to be wealthier, and we owe it to our descendants to leave it as wealthy as we can. They'll think we're pretty stupid if we neglect technology. Once we've successfully returned human society back to the caves, they'll be the ones thinking: "This hole is cold and damp - I want to live somewhere less rubbish."

I also want to reward inventive scientists and engineers, whether professional or amateur, who are original and clever. If we reward them, we get more things that are original and clever. Nothing controversial so far, I hope.

Patents actually forces industry to be innovative rather than populating offices with copycats. The period of exclusivity is barely longer than a blink of the eye. For example, Qualcomm's 3G patents are now expiring and entering the "public domain". What did they do? They did what they had to do and invested in 4G and beyond.

As I opined in the original piece, the iPhone and iPad iOS user interface no longer looks nor feels particularly modern despite all the cash Apple has spent defending it. But Apple's defence of its operating system in the courts has forced other people to innovate. This is a cause for celebration.

Bong County, Liberia: boldly rejects
the Broken Patent System

The "public domain" is not a static self-generating thing. It is only as good as what goes in. Think of a lake that is constantly replenished by unpolluted water rich in minerals. The more valuable things that go into a lake, the richer the lake is, and the more diverse ecosystems it can support. With a weak rewards system, far fewer ideas enter the public domain. With a strong intellectual property system, it is more likely four or five good ideas will go in - because people have been forced to innovate. So the public domain will be richer. And you only have to wait twenty years to copy.

This kind of static thinking, which deprecates richness and growth, is something shared across anti-patent crusaders. Copyright activists demand access to today's stocks, but don't think about future flows.

Tony in Australia writes:

This article stands as the most logical argument I have read on the subject. In particular I strongly agree with your view that juries and not self-selecting bodies must be the means to determine such trials. Thanks.

This strikes me as greatly overlooked: justice must be determined through citizen peer review.

The justice system has often been compared to sausage-making: what goes into the sausage machine is ugly and what comes out is only slightly more appealing - we don't want to look too closely at it. But given what they were required to do, the Apple-Samsung jury did its job. As I wrote, a patent trial is not some arena for gesture politics. It's not a political convention, or a rally, or a United Nations global sustainability summit. It must ultimately decide whether the plaintiff's argument has merit. Juries are not invited to write manifestos or deliver messages of rage that the Twittersphere demands.

More Baumol, Less Bong

What really disturbed me was the flotilla of "intellectual property experts" seeking to exclude us from making such judgments. One wrote under the pen-name Merpel at the IPKat blog.

I wrote to Jeremy Phillips, the editor of Journal of Intellectual Property Law & Practice and the founder of the IPKat blog, enquiring who Merpel might be, and what justification Merpel could provide for taking justice out of our hands. Phillips replied:

Each of us, at one time or another, is Merpel since she is a clearing-house for comments with which, for one reason or another, we may not wish to be individually associated. I’m Merpel more often than my colleagues, a couple of whom use her with relative caution.

I can quite understand why nobody would wish to be personally associated with an idea so creepy and undemocratic.

Perhaps it's a sign of insecurity, that intellectual property problems are a symptom of something else? The fixes that are needed today are largely economic: the creation of healthy creative markets, and incentives for participants to do the right thing. So economists and businessmen can make a useful contribution here, not pontificators. We need more Baumol and less Bong. This leaves academics fretting, rather like Brecht: "Would it not be easier for the government to dissolve the people and elect another?"

IPKat was jolly proud of Merpel's contribution and proudly listed subsequent articles that had cited it. El Reg was not one of them.

What's next? Ah, yes: fixing the patent system. We have no shortage of solutions on offer, none of which is rocket science. But like the academics, the tech echo chamber has no appetite for supporting practical answers. It rarely ventures beyond an expression of disgust: "I am SO JOLLY ANGRY about our BROKEN PATENT SYSTEM."

The righteous end of the tech blogosphere is actually turning into a giant version of Twitter, endlessly retelling a joke that can never arrive at its punchline. In the absence of solid constructive arguments for the patent system, it can be safely ignored. Expressing dismay into thin air is not a substitute for a common-sense accountable legal framework. None of this helps patent examiners or policy makers. It's just pure self-indulgence.

So, seriously: the system needs to be fixed. Where do we start?

I would humbly suggest that if we can think clearly about innovation, then duff patents wouldn't be approved. When it comes to invalidating a patent, juries have either a limited scope (it varies from country to country) or none at all. But, then, the courts shouldn't have to police patent-office examiners anyway. Perhaps solutions should begin there. ®

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