Dan rants: Patently Offensive

The US Constitution, Article I, Section 8 says that congress shall have the power:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Let's talk about patents for a moment. Patents are not about protecting intellectual property. Haven't ever been. Sure, there's has been lip-service paid to that idea over the years, but in practice patents are about taking intellectual property, about artificially monopolizing and limiting innovation, funneling the fruits of thinking into the pockets of the politically savvy. From the USPTO web site :

The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States.

In practice, this quite often means that the original inventor is excluded from the use of their own invention. Look at the shady circumstances of Thomas Edison's "invention" of the carbon filament bulb, predated by Joseph Swan , the 30 year delay granting R. Gordon Gould's LASER patent because of "national security concerns", to the numerous reinventions and patentings of the condom in the late 1800s and early 1900s.

But as bad, it also means that when there are simultaneous inventors the least competent, the person who thought that their innovation was most "novel", gets to exclude the other users.

Which brings us to Hallmark setting with Tubmleweed communications . I haven't gotten too far into the research for this, but the first patent referenced in the press release is U.S. Patent No. 6,192,407: Private, trackable URLs for directed document delivery .

"Each private URL ("PURL") uniquely identifies an intended recipient of a document, the document or set of documents to be delivered, and (optionally) other parameters specific to the delivery process. The intended recipient of a document uses the PURL to retrieve the document.

This patent was filed on April 4, 1997. So the USPTO would have us believe that nobody before that had created a URL for a specific person and protected it through obscurity? Of course they had, but nobody bothered to write that in such a way that there was "published prior art" in a way that would have let Hallmark achieve justice.

Similarly, there's been rumblings about the patent which apparently covers RDF . One of the reasons for full public disclosure of patents was so that others could build upon the work of the original inventor. So is it surprising to anyone that nobody using RDF had ever heard of UFIL before their lawyer leeches started sending around threatening letters (you can check updates on this situation on a Wiki devoted to the RDF patent mess ).

Patents are a bad compromise to the problem of disclosure, the fact that trade secrets can't cover processes which need to be disclosed to the customer as part of the purchasing of a product or system. They're not serving the purpose of publicising research, they're not protecting the actual innovators, and they're scaring people away from innovation because no engineer wants to be out-lawyered.

It's time to write your Representative and Senators and demand change, lest we keep screwing the real innovators out of the fruits of their labors.

Discussion of this at the front page entry for this rant.

Friday, January 4th, 2002 danlyke@flutterby.com