Thoughts on Patents

aurellem

Written by:

Robert McIntyre

(This is all based on my knowledge of American patent/copyright law, though the situation should be similar in other countries.)

1 Copyright is normally a negative force

Copyright is something the you are automatically granted whenever you create a work in some permanent form; you don't have to request it or anything. It lets you prevent other people from copying your work, reading your work, or creating derivative works based on your work.

Thus, copyright is what I call a "negative force". It is something that you use to prevent the flow of information; it lets you remove the abilities of other people to use "your" information.

2 GPL uses copyright as a positive force

The genius of the GPL license is that it takes the negative force of copyright and turns it on its head. With the GPL, copyright can be used to enable freedom, and ensure peoples' rights to freely use your information. The GPL essentially reads:

This work is copyrighted, but by receiving this work you gain the rights to distribute, copy, and make derivative works based on this work, but only if you also license such work under this license.

The requirement for using the GPL in derivative works makes the GPL "infectious", which means the GPL will "contaminate" all derivative works with itself. This ensures that even after many many alterations, the modified work will still respect its users' freedoms the same as the original work.

3 Patents, like copyright, are normally a negative force

Patents, unlike copyright, are something you must request from the government. You are only supposed to be able to get a patent for a "novel" idea, which is an idea that wouldn't be obvious to someone working in the relevant field. A patent can be for the plans to a physical object ("regular" patent), an algorithm (software patent), or a way of doing something (process patent). Once you have a patent, it gives you the ability to stop anyone else from using your idea in any other invention. This is supposed to give you a temporary monopoly to help you make money off your invention before anyone else would be legally allowed to do so. In practice, many patents are given for ideas that are quite obvious to pretty much everyone. For example, Amazon has a patent (#5,715,399) on the idea of presenting a customer with the last four digits of a credit card instead of displaying the entire number. Amazon can sue any other company that displays only the last four digits of a credit card number and prevent them from using that method unless they pay Amazon a lot of money. Needless to say, there are many patents that are very silly.

Now, I chose a particularly silly patent, but the point is that patents can be a great force for the retardation of progress. Many silly patents have been issued, and a patent lasts for 17 years! For almost any idea, there will be some patent that will cover your idea, and then the entity that owns that patent can prevent you from selling products based on that idea or even giving products based on that idea away for free. This can become a MAJOR problem for free software, since for basically any program, some part of that program will be covered by a patent, and it can become impossible to legally distribute that program as free software. This is why some GNU/Linux distributions don't come with an mp3 player. The mp3 algorithm is patented, and even if you write an free and open-source mp3 player, you will have problems distributing that player because of the mp3 patents.

3.1 Patents are treated as property

They can be sold, seized, etc. This is because the government wants new inventions to actually be made available to the public. The idea here is that if you are an inventor and you obtain a patent on a cool invention, but are unable/unwilling to develop an commercial product, you can sell that patent to some company and give them the exclusive rights to make that invention.

Unfortunately, treating patents as physical objects has had an unintended side-effect: patent trolls. These are companies that collect patents from companies that go out of business (and though other means) and then sue companies for patent violations. They do not produce any goods or services; their entire business model is suing people. Most patent lawsuits (more than 50%) are initiated by patent trolls.

3.2 Patents are arranged in a dependency network

Just because you have a patent on your invention doesn't mean you can actually distribute that invention. Normally, your invention will be affected by other patents, which themselves are affected by other patents. You can only distribute your invention if you negotiate with the owners of all these dependent patents.

An example: If I own the patent for table tops and you own the patent for table legs, and you and I don't get along too well, then the world will be without tables for 17 years.

4 Google has created "neutral" patents via a pledge which attaches conditions to its patents.

Google has a pledge at http://www.google.com/patents/opnpledge/pledge/ that says that for certain specified patents "we pledge not to sue any user, distributor or developer of open-source software on specified patents, unless first attacked."

This is an interesting statement to me. With this pledge, Google has created "neutral" patents that allow open source software to develop, but do not particularly encourage it to develop. They have done this by attaching legally binding conditions on the enforcement of their patents via a pledge.

5 Positive Patents

We can create patents that actively enable freedom by emulating the GPL. What it would take is a company that issues a more aggressive pledge about its patents; Something along the lines of:

The Positive Patent Pledge, v0.1 " This pledge must go along with this patent – if the patent is sold or transfered then the party must take this pledge as a condition of recieving this patent.

We pledge to sue any entity that tries to sell/distribute any product that is covered by our patents. We will not settle for any amount of money but will instead ensure that the product will never see market, as is our right under patent law.

The only exception is if the product is free (all code/methods of construction is made publicly available under a free license), and the entity makes this same pledge for any patents relating to the product."

This pledge, if taken by a company with enough patents, would slowly destroy the patent system by contaminating the entire patent network with patents that infect all dependent patents with this pledge. Companies that are considering patenting something will think twice, since they don't want to be responsible for costly legal battles with no monetary reward. They would be better off releasing their work to the public domain than patenting it.

How might this hypothetical company (which is basically a noble patent trolling company) gain control of patents? They could use the normal patent troll methods of buying bulk patents from companies that are going out of business. However, they could also gather patents from individuals and companies who believe that the patent system is harmful to innovation – they would simply donate their patents to the cause.

How could this company get enough money to fight these legal battles? Perhaps there could be a possibility of settling for money and requiring the company to make their relevant patents merely neutral instead of positive. Then, the positive patent pledge could read:

The Positive Patent Pledge v0.2

This pledge must go along with this patent – if the patent is sold or transfered then the party must take this pledge as a condition of recieving this patent.

We pledge to sue any entity that tries to sell/distribute any product that is covered by our patents. We will not settle for any amount of money but will instead ensure that the product will never see market, as is our right under patent law.

The only exception is if the product is free (all code/methods of construction is made publicly available under a free license), and the entity makes this same pledge for any patents relating to the product. The entity can take the Google 'neutral patent pledge' instead of this pledge if they are a 'special exception'.

The only way for a company to become a special exception would be for them to contribute monetarily to this hypothetical company.

6 Source Listing

Author: Robert McIntyre

Created: 2016-07-13 Wed 00:17

Emacs 24.5.1 (Org mode 8.3beta)

Validate