Out of the way

Recently a patent I think is silly got a bit famous.

The idea behind patents is that they allow people who have invented something new, original, and not obvious to make a profit from their work, at the same time publishing the details to allow scientists to continue developing valuable things to improve our lives.

This patent covers a device that millions of people have thought of as obvious for several decades. A patent is supposed to last for a decade or two - but three decades ago I was imagining (and like many kids, drawing pictures of) little mobile things that had games, phones, tape recorders, anything I could imagine wanting to carry around. In the early 1980's I even had some of these things - a mobile device for recording and storing music (at the time it was a cassette player, because music was then transmitted over the radio), a wristwatch that had a radio, and a handheld unit that allowed me to send an encoded signal to communicate with other people. How, quarter of a century later, can anyone imagine that the idea of putting all these things together in a mobile unit isn't obvious?

If the holder of the patent had done something clever in inventing a way of doing things people hadn't thought of, that would be one thing. But this is just very very difficult to understand as being innovative. Maybe nobody has thought of filing a patent for using exhaust head from a car that is driving as a way of heating food (say, a cup of coffee, or your little tupperware lunchbox). But it is not inventive. It is not original. It is a lawyers way of describing what happens when you wrap a rabbit or fish you caught and cleaned in tinfoil with a few onions and a bit of bacon, and wiring it onto the exhaust manifold so it's cooked when you get home.

A second case was one I saw a few years ago. Somebody had invented what amounted to a spreadsheet where you could make connections between two individual spreadsheets. And graph data out of the spreadsheet. I am pretty sure that by the time this was submitted, you could do that with commercial spreadsheet, and I would be surprised if the application hadn't actually sat at some point inside an off-the-shelf piece of software that alrady did the things it claimed to have invented. If not, I did make something that did all this stuff as an exercise in showing someone things they could do with their school project, about 7 years earlier than the application. Of course it struck me as marginally clever, but hardly not obvious. And I wasn't thinking of filing patents, so I didn't.

But there is some good news. I went to a meeting in Melbourne of people trying to make it possible to put video on the web or share it around without having to pay huge fees to be allowed to implement something. One perspective on this is that these people are trying to gut a serious market, and their work will end up destroying people's livelihoods. Another is that people are so outraged by the requirement to pay lots of money for things that aren't actually worth much that they are prepared to work for free so other people don't have to suffer unfair marketing games forcing them to shell out unreasonable fees.

Anyway, whatever the case, the FOMS (that stands for "Foundations of Open Media Software") people are trying to make sure that it is possible to do useful things with video without begging permission from one of the patent-holding cartels. Late last year, after a promising moment when it looked like HTML5 might actually recommend (but not require) the use of Ogg/Theora for video because it is claimed to be implementable without paying royalties, an unsubstantiated claim by Nokia that Theora could never realistically be used by anyone and that they would not support even a recommendation for it meant that it was withdrawn in the interests of building consensus.

Another promising step forward brought to nothing by whispers and FUD. So, what is so good here? Well, at the meeting, it seems that "Monty" (one of the guys behind the Theora effort) was convinced to change the approach they had taken to patents. Instead of "see nothing, know nothing, say nothing" (which is a terribly common approach among US corporations), he is now going to work on trying to clarify the patent landscape, establishing the prior art for work they have done, and the patents they have got to protect new and innovative parts of the work.

Because this is the really bad thing about patents. While patent holders can use them to make money, they don't do any of the things they were supposed to do for society. Patent protection seems to have absolutely zero effect on innovation in industries. It is effectively impossible to know what has been patented, since the applications are carefully written to cover almost anything you might think they could be stretched to cover, and because often they are describing things that, explained clearly, would instantly be seen as totally undeserving of a patent.

But they do allow people to use the doubt and uncertainty they generate as a way to frighten others away from innovating or developing something valuable or useful. Or to frighten them into a little gang where they collect a group of patents, and then use them to bully the rest of the kids in their playground, as it were.

So seeing people make an effort to clear away the darkness is a very encouraging sign. Personally, I think the world would not suffer if the patent system disappeared entirely. But until that day, they exist as a legal reality, and the best thing we can do is try to clarify what they mean, point out which ones are really not defensible, and try to at least ensure that existing patents actually cover a real invention or are re-examined and thrown out...