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1 #+title: Thoughts on Patents
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2 #+author: Robert McIntyre
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3 #+email: rlm@mit.edu
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4 #+description:
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5 #+keywords:
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6 #+SETUPFILE: ../../aurellem/org/setup.org
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7 #+INCLUDE: ../../aurellem/org/level-0.org
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8
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9
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10 (This is all based on my knowledge of American patent/copyright law.)
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11
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12 * Copyright is normally a negative force
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13
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14 Copyright is something the you are automatically granted whenever
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15 you create a work in some permanent form; you don't have to request
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16 it or anything. It lets you prevent other people from copying your
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17 work, reading your work, or creating derivitave works based on your
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18 work.
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19
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20 Thus, copyright is what I call a "negative force". It is something
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21 that you use to prevent the flow of information; it lets you remove
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22 the abilities of other people to use "your" information.
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23
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24 * GPL uses copyright as a positive force
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25
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26 The genius of the GPL license is that it takes the negative force of
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27 copyright and turns it on its head. With the GPL, copyright can be
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28 used to enable freedom, and ensure peoples' rights to freely use
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29 your information. The GPL essentially reads:
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30
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31 #+begin_quote
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32 This work is copyrighted, but by recieving this work you gain the
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33 rights to distribute, copy, and make derivitave works based on this
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34 work, but only if you also license such work under this license.
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35 #+end_quote
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36
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37 The requirement for using the GPL in derivative works makes the GPL
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38 "infectious", which means the GPL will "contaminate" all derivative
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39 works with itself. This ensures that even after many many
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40 alterations, the modified work will still respect its users'
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41 freedoms the same as the original work.
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42
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43 * Patents, like copyright, are normally a negative force
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44
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45 Patents, unlike copyright, are something you must request from the
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46 government. You are only supposed to be able to get a patent for a
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47 "novel" idea, which is an idea that wouldn't be obvious to someone
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48 working in the relevant field. A patent can be for the plans to a
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49 physical object ("regular" patents), an algorithm (software patent),
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50 of a way of doing something (process patent). Once you have a
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51 patent, it gives you the ability to stop anyone else from using your
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52 idea in any other invention. This is supposed to give you a
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53 temporary monopoly to help you make money off your invention before
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54 anyone else would be legally allowed to do so. In practce, many
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55 patents are given for ideas that are quite obvious to pretty much
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56 everyone. For example, Amazon has a patent (#[[http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN%2F5715399][5,715,399]]) on the idea
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57 of presenting a coustomer with the last four digits of a credit card
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58 instead of displaying the entire numbner. Amazon can sue any other
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59 company that displays only the last four digits of a credit card
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60 number and prevent them from using that method unless they pay
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61 Amazon a lot of money. Needless to say, there are many patents that
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62 are very silly.
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63
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64 Now, I choose a particurally silly patent, but the point is that
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65 patents can be a great force for the retardation of progress. Many
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66 silly patents have been issued, and a patent lasts for 17 years. For
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67 almost any idea, there will be some patent that will cover your
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68 idea, and then the entity that owns that patent can prevent you from
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69 selling products based on that idea /or even giving products based
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70 on that idea away for free/.
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71
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72 ** Patents are treated as physical objects
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73 They can be sold, seized, etc. This is because the government wants
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74 new inventions to actually be made available to the public. The idea
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75 here is that if you are an inventor and you obtain a patent on a
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76 cool invention, but are unable/unwilling to develop an commercial
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77 product, you can sell that patent to some company and give them the
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78 exclusive rights to make that invention.
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79
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80 ** Patents are arranged in a dependency network
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81
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82 Patents are usually a negative force, one that allows you to stop
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83 other entities from using knowledge to their own advantage.
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84
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85 * Google has created "neutral" patents via a pledge which attaches conditions to its patents.
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86 Google has a pledge at
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87 http://www.google.com/patents/opnpledge/pledge/ that says that for
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88 certain specified patents "we pledge not to sue any user,
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89 distributor or developer of open-source software on specified
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90 patents, unless first attacked."
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91
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92 This is an interesting statement to me. With this pledge, Google has
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93 created "neutral" patents that allow open source software to
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94 develop, but do not particurally encourage it to develop. They have
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95 done this by attaching legally binding conditions on the enforcement
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96 of their patents via a pledge.
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97
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98 * Positive Patents
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99 We can create patents that actively encourage openness by emulating
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100 the GPL. What it would take is a company that issues a more
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101 agressive pledge about its patents; Something along the lines of:
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102
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103 #+begin_quote
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104 The Positive Patent Pledge, v0.1
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105
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106 "We pledge to sue any entity that tries to sell/distribute any
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107 product that is covered by our patents. We will not settle for any
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108 amount of money but will instead ensure that the product will never
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109 see market, as is our right under patent law.
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110
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111 The only exception is if the product is open (all code/methods of
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112 construction is made pubically available under an open license), and
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113 the entity makes this same pledge for any patents relating to the
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114 product."
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115 #+end_quote
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116
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117 This pledge, if taken by a company with enough patents, would slowly
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118 destroy the patent system by contaminating the entire patent network
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119 with patents that infect all dependent patents with this
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120 pledge. Companies that are considering patenting something will
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121 think twice, since they don't want to be responsible for costly
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122 legal battles with no monetary reward. They would be better off
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123 releasing their work to the public domain than patenting it.
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124
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125 How might this hypothetical company (which is basically a noble
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126 patent trolling company) gain control of patents? They could use the
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127 normal patent troll methods of buying bulk patents from companies
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128 that are going out of business. However, they could also gather
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129 patents from individuals and companies who believe that the patent
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130 system is harmful to innovation, and simply donate their patents to
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131 the cause.
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132
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133 How could this get enough money to fight these legal battles?
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134 Perhaps there could be a possibility of settling for money and
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135 requiring the company to make their relevant patents merely neutral
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136 instead of positive. Then, the positive patent pledge could read:
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137
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138 #+begin_quote
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139 The Positive Patent Pledge v0.2
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140
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141 "We pledge to sue any entity that tries to sell/distribute any
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142 product that is covered by our patents. We will not settle for any
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143 amount of money but will instead ensure that the product will never
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144 see market, as is our right under patent law.
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145
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146 The only exception is if the product is open (all code/methods of
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147 construction is made pubically available under an open license), and
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148 the entity makes this same pledge for any patents relating to the
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149 product, the entity can take the Google 'neutral patent pledge'
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150 instead of this pledge if they are a 'special exception'.
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151 #+end_quote
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152
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153 The only way for a company to become a special exception would be
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154 for them to contribute monetairly to this hypothetical company.
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155
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156
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