view org/patents.org @ 21:8df13ee40f30

minor change.
author Robert McIntyre <rlm@mit.edu>
date Mon, 01 Apr 2013 16:14:26 +0000
parents 6e9f3c10cebd
children 004f5f795445
line wrap: on
line source
1 #+title: Thoughts on Patents
2 #+author: Robert McIntyre
3 #+email: rlm@mit.edu
4 #+description: A way to destroy the patent system.
5 #+keywords: patent, copyright, GPL, freedom, copyleft, pledge
6 #+SETUPFILE: ../../aurellem/org/setup.org
7 #+INCLUDE: ../../aurellem/org/level-0.org
10 (This is all based on my knowledge of American patent/copyright law.)
12 * Copyright is normally a negative force
14 Copyright is something the you are automatically granted whenever
15 you create a work in some permanent form; you don't have to request
16 it or anything. It lets you prevent other people from copying your
17 work, reading your work, or creating derivative works based on your
18 work.
20 Thus, copyright is what I call a "negative force". It is something
21 that you use to prevent the flow of information; it lets you remove
22 the abilities of other people to use "your" information.
24 * GPL uses copyright as a positive force
26 The genius of the GPL license is that it takes the negative force of
27 copyright and turns it on its head. With the GPL, copyright can be
28 used to enable freedom, and ensure peoples' rights to freely use
29 your information. The GPL essentially reads:
31 #+begin_quote
32 This work is copyrighted, but by receiving this work you gain the
33 rights to distribute, copy, and make derivative works based on this
34 work, but only if you also license such work under this license.
35 #+end_quote
37 The requirement for using the GPL in derivative works makes the GPL
38 "infectious", which means the GPL will "contaminate" all derivative
39 works with itself. This ensures that even after many many
40 alterations, the modified work will still respect its users'
41 freedoms the same as the original work.
43 * Patents, like copyright, are normally a negative force
45 Patents, unlike copyright, are something you must request from the
46 government. You are only supposed to be able to get a patent for a
47 "novel" idea, which is an idea that wouldn't be obvious to someone
48 working in the relevant field. A patent can be for the plans to a
49 physical object ("regular" patent), an algorithm (software patent),
50 of a way of doing something (process patent). Once you have a
51 patent, it gives you the ability to stop anyone else from using your
52 idea in any other invention. This is supposed to give you a
53 temporary monopoly to help you make money off your invention before
54 anyone else would be legally allowed to do so. In practice, many
55 patents are given for ideas that are quite obvious to pretty much
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
57 of presenting a customer with the last four digits of a credit card
58 instead of displaying the entire number. Amazon can sue any other
59 company that displays only the last four digits of a credit card
60 number and prevent them from using that method unless they pay
61 Amazon a lot of money. Needless to say, there are many patents that
62 are very silly.
64 Now, I chose a particularly silly patent, but the point is that
65 patents can be a great force for the retardation of progress. Many
66 silly patents have been issued, and a patent lasts for 17 years. For
67 almost any idea, there will be some patent that will cover your
68 idea, and then the entity that owns that patent can prevent you from
69 selling products based on that idea /or even giving products based
70 on that idea away for free/. This can become a MAJOR problem for
71 free software, since for basically any program, some part of that
72 program will be covered by a patent, and it can become impossible to
73 legally distribute that program as free software. This is why some
74 GNU/Linux distributions don't come with an mp3 player. The mp3
75 algorithm is patented, and even if you write an open source mp3
76 player, you will have problems distributing that player because of
77 the mp3 patents.
79 ** Patents are treated as physical objects
80 They can be sold, seized, etc. This is because the government wants
81 new inventions to actually be made available to the public. The idea
82 here is that if you are an inventor and you obtain a patent on a
83 cool invention, but are unable/unwilling to develop an commercial
84 product, you can sell that patent to some company and give them the
85 exclusive rights to make that invention.
87 Unfortunately, treating patents as physical objects has had an
88 unintended side-effect: [[http://en.wikipedia.org/wiki/Patent_troll][patent trolls]]. These are companies that
89 collect patents from companies that go out of business (and though
90 other means) and then sue companies for patent violations. The do
91 not produce any goods or services; their entire business model is
92 suing people. Most patent lawsuits (more than 50%) are initiated by
93 patent trolls.
95 ** Patents are arranged in a dependency network
96 Just because you have a patent on your invention doesn't mean you
97 can actually distribute that invention. Normally, your invention
98 will be affected by other patents, which themselves are affected by
99 other patents. You can only distribute your invention if you
100 negotiate with the owners of all these dependent patents.
102 An example: If I own the patent for table tops and you own the
103 patent for table legs, and you and I don't get along too well, then
104 the world will be without tables for 17 years.
106 * Google has created "neutral" patents via a pledge which attaches conditions to its patents.
107 Google has a pledge at
108 http://www.google.com/patents/opnpledge/pledge/ that says that for
109 certain specified patents "we pledge not to sue any user,
110 distributor or developer of open-source software on specified
111 patents, unless first attacked."
113 This is an interesting statement to me. With this pledge, Google has
114 created "neutral" patents that allow open source software to
115 develop, but do not particularly encourage it to develop. They have
116 done this by attaching legally binding conditions on the enforcement
117 of their patents via a pledge.
119 * Positive Patents
120 We can create patents that actively encourage openness by emulating
121 the GPL. What it would take is a company that issues a more
122 aggressive pledge about its patents; Something along the lines of:
124 #+begin_quote
125 The Positive Patent Pledge, v0.1
127 "We pledge to sue any entity that tries to sell/distribute any
128 product that is covered by our patents. We will not settle for any
129 amount of money but will instead ensure that the product will never
130 see market, as is our right under patent law.
132 The only exception is if the product is open (all code/methods of
133 construction is made publicly available under an open license), and
134 the entity makes this same pledge for any patents relating to the
135 product."
136 #+end_quote
138 This pledge, if taken by a company with enough patents, would slowly
139 destroy the patent system by contaminating the entire patent network
140 with patents that infect all dependent patents with this
141 pledge. Companies that are considering patenting something will
142 think twice, since they don't want to be responsible for costly
143 legal battles with no monetary reward. They would be better off
144 releasing their work to the public domain than patenting it.
146 How might this hypothetical company (which is basically a noble
147 patent trolling company) gain control of patents? They could use the
148 normal patent troll methods of buying bulk patents from companies
149 that are going out of business. However, they could also gather
150 patents from individuals and companies who believe that the patent
151 system is harmful to innovation, and simply donate their patents to
152 the cause.
154 How could this get enough money to fight these legal battles?
155 Perhaps there could be a possibility of settling for money and
156 requiring the company to make their relevant patents merely neutral
157 instead of positive. Then, the positive patent pledge could read:
159 #+begin_quote
160 The Positive Patent Pledge v0.2
162 "We pledge to sue any entity that tries to sell/distribute any
163 product that is covered by our patents. We will not settle for any
164 amount of money but will instead ensure that the product will never
165 see market, as is our right under patent law.
167 The only exception is if the product is open (all code/methods of
168 construction is made publicly available under an open license), and
169 the entity makes this same pledge for any patents relating to the
170 product, the entity can take the Google 'neutral patent pledge'
171 instead of this pledge if they are a 'special exception'.
172 #+end_quote
174 The only way for a company to become a special exception would be
175 for them to contribute monetarily to this hypothetical company.