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12/18/2003 Archived Entry: "Patents"

It's nice to see that someone at IBM has a sense of humor, and some corporate license to display it: Linux fans will appreciate Penguinstein.

If you needed another reason to despise Microsoft, they're now demanding a cut for every flash memory card and device sold. That would include still and video cameras, audio and video players, and so on.

This is based on their patent for the 25-year-old FAT file system -- used in IBM PCs from day one, and now being applied to memory cards. Only in the bizarro world of patent law does that make sense. That's like patenting the format for 3.5" disks when it has been used for years on 5.25" disks.

It seems to me -- and to others -- that Microsoft is desperately seeking a new revenue model. Let's call it "patent profiteering" for want of a better term. (I dare not use the term "extortion.") They're not alone; Optima Technology is demanding payoffs from manufacturers of recordable CD drives.

Patent law is a travesty. I won't delve into the moral and philosophical problems with patents -- others have done that far better than I could, starting with Benjamin Tucker -- but I'll vent a few pragmatic stabs here. Patents (a) stifle innovation, (b) deny reality, (c) are unnecessary, and (d) violate intellectual property rights. (OK, that last one's a moral point.)

(a) Most innovation does not occur by inventing new things from scratch. It occurs by improving on existing work, as Sir Isaac Newton freely admitted. Patents restrict this from happening. (This is one reason why innovation happens so much faster in the open-source world.)

(b) The human mind is inherently associative. Once you have been exposed to an idea, that idea will influence (contaminate?) your thinking, and cannot be commanded out of it. Patent law denies this, and demands that your mind work tabula rasa.

(c.1) In the early days of popular computing (the '70s), software was protected neither by patent nor copyright. So software vendors developed contractual protection -- license agreements -- which worked well enough to give birth to the modern software industry. So much for "necessity."

(c.2) Patents don't make money, as Walker Digital discovered. Being first with an innovation, and bringing it to market, makes money. Having a six- or twelve-month lead is generally enough to gain "first mover" advantage and turn a profit...and that's often how long it takes an invention to be duplicated, in the absence of patents.

(d) If anything can be said to be an intellectual property "right", it is this: you have the right to use and exploit the product of your mind. Patent law denies you this if any other person had a similar thought, and beat you to the patent office by five minutes. This is not far-fetched -- examples abound of independent invention (including calculus, the telephone, and the regenerative radio circuit, to name just three that spring to mind).

Let's face it: if your invention is so obvious that by mere inspection, others can learn the idea, then your patent was not that innovative to begin with. And in the age of "Internet time," granting a 17- or 20-year monopoly on a computer invention is ludicrous in the extreme.

It's unlikely that patent law can be weakened, although there's still hope that the EU's extension of patents to software can be blocked. The one bright light is that patents are beginning to be challenged. I have hopes for the newly formed Public Patent Foundation. They may be the last refuge for the "little guys" who are quietly inventing and developing computer hardware and software, without the desire or resources to seek patent monopoly.

(Thanks to Groklaw for the link to the Walker Digital story.)

brad