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author Robert McIntyre <rlm@mit.edu>
date Mon, 01 Apr 2013 16:07:01 +0000
parents fe9e92bbafbc
children 6e9f3c10cebd
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rlm@12 1 #+title: Thoughts on Patents
rlm@12 2 #+author: Robert McIntyre
rlm@12 3 #+email: rlm@mit.edu
rlm@19 4 #+description: A way to destroy the patent system.
rlm@19 5 #+keywords: patent, copyright, GPL, freedom, copyleft, pledge
rlm@12 6 #+SETUPFILE: ../../aurellem/org/setup.org
rlm@12 7 #+INCLUDE: ../../aurellem/org/level-0.org
rlm@12 8
rlm@12 9
rlm@13 10 (This is all based on my knowledge of American patent/copyright law.)
rlm@13 11
rlm@13 12 * Copyright is normally a negative force
rlm@14 13
rlm@14 14 Copyright is something the you are automatically granted whenever
rlm@14 15 you create a work in some permanent form; you don't have to request
rlm@14 16 it or anything. It lets you prevent other people from copying your
rlm@18 17 work, reading your work, or creating derivative works based on your
rlm@14 18 work.
rlm@13 19
rlm@15 20 Thus, copyright is what I call a "negative force". It is something
rlm@15 21 that you use to prevent the flow of information; it lets you remove
rlm@15 22 the abilities of other people to use "your" information.
rlm@15 23
rlm@13 24 * GPL uses copyright as a positive force
rlm@13 25
rlm@15 26 The genius of the GPL license is that it takes the negative force of
rlm@15 27 copyright and turns it on its head. With the GPL, copyright can be
rlm@15 28 used to enable freedom, and ensure peoples' rights to freely use
rlm@15 29 your information. The GPL essentially reads:
rlm@12 30
rlm@15 31 #+begin_quote
rlm@18 32 This work is copyrighted, but by receiving this work you gain the
rlm@18 33 rights to distribute, copy, and make derivative works based on this
rlm@15 34 work, but only if you also license such work under this license.
rlm@15 35 #+end_quote
rlm@15 36
rlm@15 37 The requirement for using the GPL in derivative works makes the GPL
rlm@15 38 "infectious", which means the GPL will "contaminate" all derivative
rlm@15 39 works with itself. This ensures that even after many many
rlm@15 40 alterations, the modified work will still respect its users'
rlm@15 41 freedoms the same as the original work.
rlm@15 42
rlm@15 43 * Patents, like copyright, are normally a negative force
rlm@15 44
rlm@15 45 Patents, unlike copyright, are something you must request from the
rlm@15 46 government. You are only supposed to be able to get a patent for a
rlm@15 47 "novel" idea, which is an idea that wouldn't be obvious to someone
rlm@15 48 working in the relevant field. A patent can be for the plans to a
rlm@15 49 physical object ("regular" patents), an algorithm (software patent),
rlm@15 50 of a way of doing something (process patent). Once you have a
rlm@15 51 patent, it gives you the ability to stop anyone else from using your
rlm@15 52 idea in any other invention. This is supposed to give you a
rlm@15 53 temporary monopoly to help you make money off your invention before
rlm@18 54 anyone else would be legally allowed to do so. In practice, many
rlm@15 55 patents are given for ideas that are quite obvious to pretty much
rlm@15 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
rlm@18 57 of presenting a customer with the last four digits of a credit card
rlm@18 58 instead of displaying the entire number. Amazon can sue any other
rlm@15 59 company that displays only the last four digits of a credit card
rlm@15 60 number and prevent them from using that method unless they pay
rlm@15 61 Amazon a lot of money. Needless to say, there are many patents that
rlm@15 62 are very silly.
rlm@15 63
rlm@18 64 Now, I choose a particularly silly patent, but the point is that
rlm@15 65 patents can be a great force for the retardation of progress. Many
rlm@15 66 silly patents have been issued, and a patent lasts for 17 years. For
rlm@15 67 almost any idea, there will be some patent that will cover your
rlm@15 68 idea, and then the entity that owns that patent can prevent you from
rlm@15 69 selling products based on that idea /or even giving products based
rlm@16 70 on that idea away for free/. This can become a MAJOR problem for
rlm@16 71 free software, since for basically any program, some part of that
rlm@16 72 program will be covered by a patent, and it can become impossible to
rlm@16 73 legally distribute that program as free software. This is why some
rlm@16 74 GNU/Linux distributions don't come with an mp3 player. The mp3
rlm@18 75 algorithm is patented, and even if you write an open source mp3
rlm@18 76 player, you will have problems distributing that player because of
rlm@16 77 the mp3 patents.
rlm@15 78
rlm@15 79 ** Patents are treated as physical objects
rlm@15 80 They can be sold, seized, etc. This is because the government wants
rlm@15 81 new inventions to actually be made available to the public. The idea
rlm@15 82 here is that if you are an inventor and you obtain a patent on a
rlm@15 83 cool invention, but are unable/unwilling to develop an commercial
rlm@15 84 product, you can sell that patent to some company and give them the
rlm@15 85 exclusive rights to make that invention.
rlm@15 86
rlm@16 87 Unfortunately, treating patents as physical objects has had an
rlm@16 88 unintended side-effect: [[http://en.wikipedia.org/wiki/Patent_troll][patent trolls]]. These are companies that
rlm@16 89 collect patents from companies that go out of business (and though
rlm@16 90 other means) and then sue companies for patent violations. The do
rlm@16 91 not produce any goods or services; their entire business model is
rlm@16 92 suing people. Most patent lawsuits (more than 50%) are initiated by
rlm@16 93 patent trolls.
rlm@16 94
rlm@15 95 ** Patents are arranged in a dependency network
rlm@17 96 Just because you have a patent on your invention doesn't mean you
rlm@17 97 can actually distribute that invention. Normally, your invention
rlm@17 98 will be affected by other patents, which themselves are affected by
rlm@17 99 other patents. You can only distribute your invention if you
rlm@18 100 negotiate with the owners of all these dependent patents.
rlm@17 101
rlm@17 102 An example: If I own the patent for table tops and you own the
rlm@17 103 patent for table legs, and you and I don't get along too well, then
rlm@17 104 the world will be without tables for 17 years.
rlm@16 105
rlm@12 106 * Google has created "neutral" patents via a pledge which attaches conditions to its patents.
rlm@12 107 Google has a pledge at
rlm@12 108 http://www.google.com/patents/opnpledge/pledge/ that says that for
rlm@12 109 certain specified patents "we pledge not to sue any user,
rlm@12 110 distributor or developer of open-source software on specified
rlm@12 111 patents, unless first attacked."
rlm@12 112
rlm@12 113 This is an interesting statement to me. With this pledge, Google has
rlm@12 114 created "neutral" patents that allow open source software to
rlm@18 115 develop, but do not particularly encourage it to develop. They have
rlm@13 116 done this by attaching legally binding conditions on the enforcement
rlm@13 117 of their patents via a pledge.
rlm@12 118
rlm@13 119 * Positive Patents
rlm@13 120 We can create patents that actively encourage openness by emulating
rlm@13 121 the GPL. What it would take is a company that issues a more
rlm@18 122 aggressive pledge about its patents; Something along the lines of:
rlm@13 123
rlm@13 124 #+begin_quote
rlm@13 125 The Positive Patent Pledge, v0.1
rlm@12 126
rlm@13 127 "We pledge to sue any entity that tries to sell/distribute any
rlm@13 128 product that is covered by our patents. We will not settle for any
rlm@13 129 amount of money but will instead ensure that the product will never
rlm@13 130 see market, as is our right under patent law.
rlm@13 131
rlm@13 132 The only exception is if the product is open (all code/methods of
rlm@18 133 construction is made publicly available under an open license), and
rlm@13 134 the entity makes this same pledge for any patents relating to the
rlm@13 135 product."
rlm@13 136 #+end_quote
rlm@13 137
rlm@13 138 This pledge, if taken by a company with enough patents, would slowly
rlm@13 139 destroy the patent system by contaminating the entire patent network
rlm@13 140 with patents that infect all dependent patents with this
rlm@13 141 pledge. Companies that are considering patenting something will
rlm@13 142 think twice, since they don't want to be responsible for costly
rlm@13 143 legal battles with no monetary reward. They would be better off
rlm@13 144 releasing their work to the public domain than patenting it.
rlm@13 145
rlm@13 146 How might this hypothetical company (which is basically a noble
rlm@13 147 patent trolling company) gain control of patents? They could use the
rlm@13 148 normal patent troll methods of buying bulk patents from companies
rlm@13 149 that are going out of business. However, they could also gather
rlm@13 150 patents from individuals and companies who believe that the patent
rlm@13 151 system is harmful to innovation, and simply donate their patents to
rlm@13 152 the cause.
rlm@13 153
rlm@13 154 How could this get enough money to fight these legal battles?
rlm@13 155 Perhaps there could be a possibility of settling for money and
rlm@13 156 requiring the company to make their relevant patents merely neutral
rlm@13 157 instead of positive. Then, the positive patent pledge could read:
rlm@13 158
rlm@13 159 #+begin_quote
rlm@13 160 The Positive Patent Pledge v0.2
rlm@13 161
rlm@13 162 "We pledge to sue any entity that tries to sell/distribute any
rlm@13 163 product that is covered by our patents. We will not settle for any
rlm@13 164 amount of money but will instead ensure that the product will never
rlm@13 165 see market, as is our right under patent law.
rlm@13 166
rlm@13 167 The only exception is if the product is open (all code/methods of
rlm@18 168 construction is made publicly available under an open license), and
rlm@13 169 the entity makes this same pledge for any patents relating to the
rlm@13 170 product, the entity can take the Google 'neutral patent pledge'
rlm@13 171 instead of this pledge if they are a 'special exception'.
rlm@13 172 #+end_quote
rlm@13 173
rlm@13 174 The only way for a company to become a special exception would be
rlm@18 175 for them to contribute monetarily to this hypothetical company.