Last month, the Supreme Court heard arguments in Alice Corporation Pty. Ltd. v. CLS Bank International (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-298.htm) and was, by extension, trying determining whether software can be patented. This case and the assorted briefs filed got me to thinking about the nature of intellectual property.
To quote Thomas Alva Edison, “Genius is one percent inspiration and ninety-nine percent perspiration.” In essence, it is the 99% perspiration that intellectual property laws seek to protect. If you have worked hard to invent/write something, then you deserve the opportunity to make a profit from your effort. Conversely, it is deemed illegal to take the work of someone else and make money from that work without the permission of the person who put in the work.
However, we should not allow idle dreamers to gain a legal stranglehold on innovation. In order to obtain intellectual property rights, you need to show some effort – a product. The product might be a completed novel, piece of music or working invention. Just claiming copyright on a tune in your head will not do.
Nor should your invention give you indefinite rights. If you can’t make any money on your idea, it is quite likely that your idea has a fundamental flaw. Conversely, if you make lots of money on your idea, you have been paid for your effort. In order to promote innovation, others should be able to build upon your work after a reasonable amount of time, either to correct your flaw or improve your innovation and reap the rewords for their work.
There are three recognized types of intellectual property: patents which cover useful devices, copyright which covers works of art and trade secrets which can be anything, but receive little to no protection from the law.
With regards to patents, there are four tests that are traditionally applied: subject matter, novelty, non-obviousness and usefulness. Subject matter addresses means it must be something you created, not something your observed, i.e. you can’t patent nature. The other three, to various levels, address the issue of effort. At it’s core, it is impossible to determine how much of staring at the ceiling (or drinking tea, or whatever helps you think) is actually effort of invention/creation and how much is, well, goofing off. So, we use proxies.
First, novelty is the basic act of determining if this is something you spent effort on, rather than something you copied from somewhere else. If it already exists in the world, then you don’t get credit.
Second, non-obviousness is a subjective determination of how much effort the invention took. If it is obvious, it probably took very little effort. Non-obviousness also serves as a proxy backup for novelty – if it is pretty obvious, then someone has likely done it already.
Third, usefulness is a determination of the reality of your invention. That is, you cannot claim invention of a magic wand if you can’t actually produce the wand. This prevents idle claiming of ideas without the hard work of figuring out how to make it happen.
Software has some extra problems. Whereas traditional inventions are typically stand alone – i.e. the support required from other devices is minimal – software is dependent on the hardware of the computer, likely the operating system resident on the computer and possibly some other software on the computer. So, when you file a patent claim for software, your specific claims inherently become a set of instructions for other entities to follow.
There is significant opposition to patents that are instructions. Business method patents – sets of instructions to employees or business partners – face particular objections. This is understandable in that (a) it seems unlikely no one has ever done before and (b) there is no physical object that accomplishes the patent – no device.
Furthermore, software inventions are often algorithms, which are suspiciously like mathematical relationships that are natural truths. As stated previously, you cannot get a patent for an observation of a natural truth. Thus, patent claims for software are regarded with some suspicion.
It seems to me that under current US law, intellectual property gets too much protection and not enough review. The incentives are skewed in that intellectual property is too easy to get and lingers for too long. Copyright is a relatively simple matter of attaching a copyright statement to the work of art – (virtually too, not even physically). Copyright protection then extends beyond the reasonable life of the author (see the copyright protection for Mr. Disney’s Mickey Mouse).
But the focus here is on patents. For patents, the review process is limited by time and budget constraints. The US Patent Office is awash in patent applications to review and either approve or deny. Understandably, the office views its job as facilitating patents rather than blocking them. As such, they err on the side of approval. The practical result is that too many patents are issued for dubious ideas. New software is too easy to create, and with myriad patents being issued, no one can reasonably keep up with all the software patents in force.
The result is the behavior of patent trolls, who acquire large numbers of patents, look for someone making lots of money, and then find something about that business that violates one of their questionable patents. Since the settlement they request is likely less than the cost of legal defense, they get paid, producing a drain on the business. There are, of course, other variations on this theme, including large business squashing competition. Regardless, it is a legal issue impinging on business activity.
For the case in question, I suspect the Supreme Court will decide narrowly that the item in question is not patentable, but say nothing more about the patentability of software. Truly innovative software should get patent protection. But the patent office needs to tighten up their patent review process, particularly with software. In the patent process, the burden of proof lies with the patent applicant until the patent is awarded. We should not lightly change the burden of proof.
Rant Against The Storm 