Mercurial > thoughts

     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

     8 

     9 

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

    11 though the situation should be similar in other countries.)

    12 

    13 * Copyright is normally a negative force

    14   

    15   Copyright is something the you are automatically granted whenever

    16   you create a work in some permanent form; you don't have to request

    17   it or anything. It lets you prevent other people from copying your

    18   work, reading your work, or creating derivative works based on your

    19   work. 

    20 

    21   Thus, copyright is what I call a "negative force". It is something

    22   that you use to prevent the flow of information; it lets you remove

    23   the abilities of other people to use "your" information.

    24   

    25 * GPL uses copyright as a positive force

    26 

    27   The genius of the GPL license is that it takes the negative force of

    28   copyright and turns it on its head. With the GPL, copyright can be

    29   used to enable freedom, and ensure peoples' rights to freely use

    30   your information. The GPL essentially reads:

    31 

    32   #+begin_quote

    33   This work is copyrighted, but by receiving this work you gain the

    34   rights to distribute, copy, and make derivative works based on this

    35   work, but only if you also license such work under this license.

    36   #+end_quote

    37 

    38   The requirement for using the GPL in derivative works makes the GPL

    39   "infectious", which means the GPL will "contaminate" all derivative

    40   works with itself. This ensures that even after many many

    41   alterations, the modified work will still respect its users'

    42   freedoms the same as the original work.

    43 

    44 * Patents, like copyright, are normally a negative force

    45 

    46   Patents, unlike copyright, are something you must request from the

    47   government. You are only supposed to be able to get a patent for a

    48   "novel" idea, which is an idea that wouldn't be obvious to someone

    49   working in the relevant field. A patent can be for the plans to a

    50   physical object ("regular" patent), an algorithm (software patent),

    51   or a way of doing something (process patent). Once you have a

    52   patent, it gives you the ability to stop anyone else from using your

    53   idea in any other invention. This is supposed to give you a

    54   temporary monopoly to help you make money off your invention before

    55   anyone else would be legally allowed to do so.  In practice, many

    56   patents are given for ideas that are quite obvious to pretty much

    57   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

    58   of presenting a customer with the last four digits of a credit card

    59   instead of displaying the entire number. Amazon can sue any other

    60   company that displays only the last four digits of a credit card

    61   number and prevent them from using that method unless they pay

    62   Amazon a lot of money. Needless to say, there are many patents that

    63   are very silly.

    64 

    65   Now, I chose a particularly silly patent, but the point is that

    66   patents can be a great force for the retardation of progress. Many

    67   silly patents have been issued, and a patent lasts for 17 years! For

    68   almost any idea, there will be some patent that will cover your

    69   idea, and then the entity that owns that patent can prevent you from

    70   selling products based on that idea /or even giving products based

    71   on that idea away for free/. This can become a MAJOR problem for

    72   free software, since for basically any program, some part of that

    73   program will be covered by a patent, and it can become impossible to

    74   legally distribute that program as free software. This is why some

    75   GNU/Linux distributions don't come with an mp3 player. The mp3

    76   algorithm is patented, and even if you write an free and open-source

    77   mp3 player, you will have problems distributing that player because

    78   of the mp3 patents.

    79 

    80 ** Patents are treated as property

    81   They can be sold, seized, etc. This is because the government wants

    82   new inventions to actually be made available to the public. The idea

    83   here is that if you are an inventor and you obtain a patent on a

    84   cool invention, but are unable/unwilling to develop an commercial

    85   product, you can sell that patent to some company and give them the

    86   exclusive rights to make that invention.

    87 

    88   Unfortunately, treating patents as physical objects has had an

    89   unintended side-effect: [[http://en.wikipedia.org/wiki/Patent_troll][patent trolls]]. These are companies that

    90   collect patents from companies that go out of business (and though

    91   other means) and then sue companies for patent violations. They do

    92   not produce any goods or services; their entire business model is

    93   suing people. Most patent lawsuits (more than 50%) are initiated by

    94   patent trolls.

    95 

    96 ** Patents are arranged in a dependency network

    97   Just because you have a patent on your invention doesn't mean you

    98   can actually distribute that invention. Normally, your invention

    99   will be affected by other patents, which themselves are affected by

   100   other patents. You can only distribute your invention if you

   101   negotiate with the owners of all these dependent patents. 

   102 

   103   An example: If I own the patent for table tops and you own the

   104   patent for table legs, and you and I don't get along too well, then

   105   the world will be without tables for 17 years.

   106   

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

   108   Google has a pledge at

   109   http://www.google.com/patents/opnpledge/pledge/ that says that for

   110   certain specified patents "we pledge not to sue any user,

   111   distributor or developer of open-source software on specified

   112   patents, unless first attacked."

   113 

   114   This is an interesting statement to me. With this pledge, Google has

   115   created "neutral" patents that allow open source software to

   116   develop, but do not particularly encourage it to develop. They have

   117   done this by attaching legally binding conditions on the enforcement

   118   of their patents via a pledge.

   119 

   120 * Positive Patents

   121   We can create patents that actively enable freedom by emulating

   122   the GPL. What it would take is a company that issues a more

   123   aggressive pledge about its patents; Something along the lines of:

   124   

   125 #+begin_quote

   126   The Positive Patent Pledge, v0.1

   127   "

   128   This pledge must go along with this patent -- if the patent is sold

   129   or transfered then the party must take this pledge as a condition of

   130   recieving this patent.

   131 

   132   We pledge to sue any entity that tries to sell/distribute any

   133   product that is covered by our patents. We will not settle for any

   134   amount of money but will instead ensure that the product will never

   135   see market, as is our right under patent law. 

   136 

   137   The only exception is if the product is free (all code/methods of

   138   construction is made publicly available under a free license), and

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

   140   product."

   141 #+end_quote

   142 

   143   This pledge, if taken by a company with enough patents, would slowly

   144   destroy the patent system by contaminating the entire patent network

   145   with patents that infect all dependent patents with this

   146   pledge. Companies that are considering patenting something will

   147   think twice, since they don't want to be responsible for costly

   148   legal battles with no monetary reward. They would be better off

   149   releasing their work to the public domain than patenting it.

   150 

   151   How might this hypothetical company (which is basically a noble

   152   patent trolling company) gain control of patents? They could use the

   153   normal patent troll methods of buying bulk patents from companies

   154   that are going out of business. However, they could also gather

   155   patents from individuals and companies who believe that the patent

   156   system is harmful to innovation -- they would simply donate their

   157   patents to the cause.

   158 

   159   How could this company get enough money to fight these legal

   160   battles?  Perhaps there could be a possibility of settling for money

   161   and requiring the company to make their relevant patents merely

   162   neutral instead of positive. Then, the positive patent pledge could

   163   read:

   164 

   165 #+begin_quote

   166   The Positive Patent Pledge v0.2

   167 

   168   This pledge must go along with this patent -- if the patent is sold

   169   or transfered then the party must take this pledge as a condition of

   170   recieving this patent.

   171 

   172   We pledge to sue any entity that tries to sell/distribute any

   173   product that is covered by our patents. We will not settle for any

   174   amount of money but will instead ensure that the product will never

   175   see market, as is our right under patent law. 

   176 

   177   The only exception is if the product is free (all code/methods of

   178   construction is made publicly available under a free license), and

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

   180   product. The entity can take the Google 'neutral patent pledge'

   181   instead of this pledge if they are a 'special exception'.

   182 #+end_quote

   183   

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

   185   for them to contribute monetarily to this hypothetical company.

   186 

   187 

   188 * Source Listing

   189 #+html: <ul> <li> <a href="../org/patents.org">This org file</a> </li> </ul>

   190   - [[http://hg.bortreb.com ][source-repository]]

   191 

   192 

   193 * COMMENT

   194  use prescriptive/freedom enabling/disabling?

   195 

   196  explain a scenario of how this pledge would work.

   197 

   198  Describe that this is to destroy the patent system

   199  

   200  talk about selective enforcement-oppression

   201 

   202  how do we get the "big guys"

   203 

   204  "dependency network" might be too abstract
author	Robert McIntyre <rlm@mit.edu>
date	Mon, 15 Jul 2013 01:12:48 -0400
parents	8aa965b5ae9a
children	42b447a048aa