Original URL: http://www.theregister.co.uk/2012/09/03/opinions4u_patents_are_broken_mailbag/

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

You know who else hated patents? Kim Jong-il

By Andrew Orlowski

Posted in Law, 3rd September 2012 08:58 GMT

Andrew's Mailbag My piece on patents on Tuesday received a record number of votes of disapproval for a Reg article. I'm not in the least bit surprised.

That's because in my analysis I advance an argument you don't hear very often in the tech world. Which is that the patent system gives us a huge social benefit.

It's an irreplaceable component of industrial organisation that produces and propagates invention. Yes, the system is frequently gamed, it generates avoidable costs, it's unnecessarily complex, and it creates many absurdities. It can be misused as a competitive weapon. Yet, when all's said and done, we're richer because of it.

The core idea - giving a short-term exclusivity to an inventor - is the best thing we've come up with so far to unlock value and spur innovation. And, in the absence of even one half-decent alternative, it follows that we need to do is try and fix the system, not discard it.

Yet here's what's very peculiar. My view is simply the mainstream one. It's very tediously conventional. Only in the online technology news echo chamber does my argument sound strange, for on the subject of patents, the echo chamber takes a radically different view of patents to the consensus of industry.

Inventors share my "let's fix it" position on patents along with people who invest in innovation, almost every sovereign state on the planet, and those involved with the international legal framework. I shall concede it's true that North Korea is not a supporter nor a member of the international patent system, overseen by the World Trade Organisation. Nor is Liberia. Or Yemen. So although patent-haters do not stand completely alone in the world, they are not offering us shining examples of economic success not any models we would wish to emulate. In truth, even most anti-intellectual-property agitators who get very angry about copyright acknowledge the quite staggering creativity and innovation that is unleashed by the patent system.

Cruel dictator Kim Jong-il bravely kept
North Korea out of the Broken Patent System

For example, the UK has undertaken two fairly hostile reviews of intellectual property rights in five years: Gowers and Hargreaves. Yet both reviews strongly asserted the value of the patent system, recommended easier access to justice, streamlining the granting of patent protection, and a higher quality of inspection - all sensible moves widely supported.

Naturally, I got some email in response to the article. To begin with, here's one from a reader called Richard reflecting a tech blogosphere view. He starts sensibly enough:

Inventors, like scientists, stand on the shoulders of giants. Apple's innovations, though significant, represent perhaps 0.1 per cent of their product.

So it's not right that they benefit from the public domain, without giving back. Apple got C from Ritchie; they got OS X from BSD; they got the WIMP [windows, icons, menus and a pointer] idea from Xerox; they got the portable music player from Sony; Safari from KDE; etc. They were welcome to all those ideas. But it looks immoral and bullying to then deny Samsung the right to copy some trivial features (even IF Samsung did copy them, rather than simply arrive at the same, obvious, conclusions to some problems).

Also, it's one thing if a patent prevents reverse-engineering or copying: but most patents simply deny a totally independent person the right to use their brains to reach their own solution. Patents are supposed not to be granted if the "invention" would be "obvious to a practitioner skilled in the art"; sadly virtually all patents that are granted would fail that test.

I replied with a couple of observations:

Firstly, an invention has to have an element of novelty for it to be a valid patent. It doesn't have to be much. Patent applications freely acknowledge prior patents, and where they differ. I simply don't understand the argument that "it's not right they benefit from the public domain without giving back", because very soon the Apple patent will be "given back" to the public domain whether Apple likes it or not. Instant reciprocity is not a moral obligation. Cute idea, though.

Secondly, your moral argument boils down to "two wrongs make a right". So what? That leads you to an ethical judgement but not a workable legal framework. Laws require somebody to be tried by citizens for a specific offence - not for "being a bad 'un".  I believe most criminal justice systems specifically exclude prior convictions which might prejudice this.

Richard replied:

What I'm driving at is this: The scientific and technical community has always researched, invented, published and shared ideas. These are freely given. 99.9 per cent of what Apple produce is done by standing on the "shoulders of giants": they get it from us; it's only fair that they should give it back (by allowing free access to their ideas). If Apple don't want to share, they don't have to - but they shouldn't expect us to share with them either; conversely, if they take and use what the community shares with them, Apple are IMHO morally obligated to share alike.

What's worse is that Apple are using legal monopolies to prevent other people thinking the same thoughts and independently solving the same technical challenges. (A patent is essentially a legal right to deny other people the fruits of their own mental labour.)

What I think is most immoral though is where Apple obtain and enforce patents on inventions that they didn't invent! For example, the multitouch pinch/zoom idea has been around for many years. The USPTO granted Apple a patent, despite prior art, and they have then used this to bully others.

Samsung hasn't done anything wrong at all. Even a "valid" patent is (IMHO) morally wrong... but in this case, the patents concerned were clearly wrongly awarded. (Typically, the Patent Office presumes that it should grant any patent that is requested unless it's flagrantly erroneous, assuming that the courts will litigate over the validity; the courts tend to assume that if the patent has been granted, it must be valid!)

So there you go: all patents are immoral.

And furthermore, if you do invent something, you have to give it to Richard.

The misunderstanding here, I think, stems from a generalisation. Scientific hypothesis should indeed be open. But you can't actually protect scientific ideas except by keeping them secret. A patent is not a hypothesis, however, it's a new method. Patent protection gives a very short period of economic exclusivity to exploit that method. Both are ideas, but ideas with very different properties and expectations. To generalise across them both loses what is unique and valuable about each one.

'Give us something familiar, something similar ... to what we know already'

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. ®