#+title: Thoughts on Patents

 #+author: Robert McIntyre

 #+email: rlm@mit.edu

 #+description: A way to destroy the patent system.

 #+keywords: patent, copyright, GPL, freedom, copyleft, pledge

 #+SETUPFILE: ../../aurellem/org/setup.org

 #+INCLUDE: ../../aurellem/org/level-0.org

 

 

 (This is all based on my knowledge of American patent/copyright law,

 though the situation should be similiar in other countries.)

 

 * 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.

   

 * 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:

 

   #+begin_quote

   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.

   #+end_quote

 

   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.

 

 * 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),

   of 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 (#[[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

   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 open source mp3

   player, you will have problems distributing that player because of

   the mp3 patents.

 

 ** Patents are treated as physical objects

   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: [[http://en.wikipedia.org/wiki/Patent_troll][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. The 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.

 

 ** 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.

   

 * 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.

 

 * Positive Patents

   We can create patents that actively encourage openness 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:

   

 #+begin_quote

   The Positive Patent Pledge, v0.1

 

   "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 open (all code/methods of

   construction is made publicly available under an open license), and

   the entity makes this same pledge for any patents relating to the

   product."

 #+end_quote

 

   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:

 

 #+begin_quote

   The Positive Patent Pledge v0.2

 

   "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 open (all code/methods of

   construction is made publicly available under an open 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'.

 #+end_quote

   

   The only way for a company to become a special exception would be

   for them to contribute monetarily to this hypothetical company.