Reform the US Patent Office!

The definition of “patent”, courtesy of the US Patent and Trademark Office:

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

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. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

Yes, there’s quite a bit more to that definition, but this is as good a place as any to start. Mostly because this is the key point at which the problems seem to start: “the right to exclude others from [doing anything with] the invention”. Basically, suing people to ensure that you either get royalties or stop them from doing anything with the invention in question.

And more importantly it is the term “invention” that I have issue with.

Lately, it seems that there are a number of companies quite content with registering patents for “inventions” that are little more than an extension of logical progression — something that was bound to come in just a matter of time. But due to the way that American Capitalism works, there is money to be made … even if you don’t have to lift a finger to get it.

A few people were applauding the USPTO’s decision to grant a patent on the techniques used to implement rich media interfaces on the internet (and pretty much anything that would connect to the internet, including set-top boxes, wireless devices, and the odd refrigerator). This was filed by Balthaser Online, a one-man operation who happened to think of the idea (filing the application for the patent, that is) before anyone else.

Sound familiar? It should — a similar sort of broad-ranging patent was filed by Eolas Inc. to handle the method in which plug-ins were included in webpages. That’s a little thorn in the side of the internet that’s raged for years, now, with pipsqueak Eolas taking on Microsoft Corporation for over US$520 million in compensation.

Compensation for what? For having an idea? Having just an idea? Where the hell is the value in that? Can anyone tell me why on Earth someone should be awarded over half a billion dollars for an idea? Especially if you didn’t sell it to someone first?

Both Eolas and Balthaser have something in common: they beat someone else to the punch. They filed patents for things that others were thinking of (or would think of shortly thereafter) — things that others would expand upon and turn into industry standards and solid techniques. In the case of Eolas, the basic idea of including a plug-in was defined by the World Wide Web Consortium and became the de facto way to include items other than HTML into a given webpage. For Balthaser, they’ve successfully patented a method for using rich media to present an interface. This includes the use of Flash, Flash, AJAX, and XAML. This affects pretty much every aspect of the much lauded Web 2.0.

But where is the innovation? Sure, they beat everyone else to the punch, but what did those companies do to push their “inventions” further? From what we can see, all they did was sit around and wait for the USPTO to approve their patents so they could then turn around and license their patent to those who wanted to use the same ideas, or sue those who refused to cough up the dough.

I side with the companies trying to defend themselves against such ridiculousness — yes, even Microsoft. I want them to win their little spat against Eolas. Tell me that this makes any sense at all. Did Eolas strike out at every browser maker who has ever used a plug-in? They could have gone after Apple and AOL (owners of Safari and Netscape, respectively). Nope. Just Microsoft. Why? Money, what other possible reason could their be? This is the kind of insipidness that comes as a result of allowing patents on broad concepts that are in development in an industry in several places, or already formed and one person happens to patent it first.

Patents weren’t intended for “armchair inventors” — they were meant for people who wanted to actually do something with it. Look at the case of Charles Goodyear, the man credited with inventing (and patenting!) vulcanized rubber. This is a guy who wanted to make a difference, someone who had a vision and was willing to follow that vision to the bitter end. And it was a very hard trail — he and his family lived in poverty (Goodyear himself was in and out of debtor’s prison) for most of their lives because of Goodyear’s obsession with creating vulcanized rubber and trying to market his invention. The poor living conditions led to the death of his son.

Goodyear defended himself in court against a wealthy (and unscrupulous) businessman, Horace Day, who had purchased several of Goodyear’s first run with the invention — shoes — to figure out how it was made so he could duplicate the process. The case, known both as “Goodyear vs. Day” and the “India Rubber Case” is well-known in patent legal precendent for defending an inventor’s rights to profit from their hard work.

That’s the key point of patents — they’re a defensive measure, not meant to be a weapon against others. That’s what most of these new patents seem to be — an effort to scoop cash because someone had the wherewithal to patent a technique that was already well on the way to development, and not even something they were responsible for coming up with.

Let’s look at the most recent (potential) offender, Balthaser Online. I loathe to immediately label them as the bad guy, but with the awarded patent, it’s not looking good. Why? Because Neil Balthaser, the former VP of Strategy for Macromedia, filed a patent in 2001 for “Methods, Systems and Processes for the Design and Creation of Rich-Media Applications via the Internet”. This was filed when Flash was already in its third version, so it was hardly a new idea. Balthaser just happened to be the first guy in the door.

But maybe I’m being too harsh. Maybe I’ve been too jaded with the silliness of the Eolas vs. Microsoft lawsuit or the utter nonsense of the NTP vs. RIM lawsuit (I mean, really guys — are you so callous about money that you’re willing to cripple communications for hundreds of thousands of people, bringing chaos to the upper echelons of Corporate America?) that I can’t see anything but ill intent. It’s possible that Balthaser got the patent to ensure that no-one else did, and will open that patent to everyone thus ensuring that all the developments in the internet since its filing will continue as they should, without impedence or fear that the financial penalty for innovation won’t prove efforts were for naught.

Having looked at American Capitalism lately, though, I’m not willing to hold my breath.

The short of this is that the USPTO does not represent the internet. Developments take place in parallel (and often in concert), building on the steps set down by others often not seen until years later (witness the sudden appearance of AJAX, despite the introduction of the core method — XMLHttpRequest() — years earlier by Microsoft). Patents filed by those keen only on reaping the rewards of others’ labour serve only to cause problems and financial hardships for those trying to honestly make a difference (and a few bucks, of course).

The USPTO should be restricted to allowing patents where there is proven effort to invent the concept, and continue that innovation to further the idea, market the idea, and do what the giants of the past did — such as Goodyear — and earn the right to own that patent. Not just be the first person to put their hand up.

If the change doesn’t come, maybe I’ll file a patent for stupidity, so I can sue all the idiots in the world.

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