Friday, May 4, 2007

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Forward progress on intellectual property

"Striking the proper balance on intellectual property rights" is one of those ideas I put in my conceptual hope chest along with "unilateral elimination of all agricultural subsidies" or "fiscal conservativism" or "NBC renewing Friday Night Lights for another season" as policies I'd really like to see but don't expect to happen.

So, it's a pleasant surprise to read the Economist's tech.view column explain that the Supreme Court actually took a positive step on patent rights:

In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions.

The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driverís height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents.

KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Courtís new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place.

The justicesí opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved.

This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbentsí old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition.

The Supreme Courtís ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by Americaís over-eager courts.

posted by Dan on 05.04.07 at 12:56 PM


It looks me like the Vonage patents are obviously noninnovative. More here.

You're being overoptimistic about the patent office. The patent office is negligent about issuing patents about old or obvious work. This isn't going to change that.

posted by: Jon Kay on 05.04.07 at 12:56 PM [permalink]

Whoops! Link here.

posted by: Jon Kay on 05.04.07 at 12:56 PM [permalink]

It is essential to general technological and cultural progress that intellectual property is not horded in the ways other forms have. I believe that control over intellectual property should be made as beneficial to humanity as possible without harming the incentives for creativity of the original designer, writer, etc. If it were possible to make such intellectual property absolute public domain do you believe this would be against progress?

posted by: Sam Zumwalt on 05.04.07 at 12:56 PM [permalink]

This does nothing to change the fundamental problem with our patent system.

Imagine if I were to go on TV and proclaim, "I have a technical problem, first person to solve it gets a billion dollars." The result would be that suddenly, a billion people would all be thinking about how to solve my problem. Suppose that a month later, I had received ten emails from ten people who had all figured out the solution.

That would show that my problem was very hard indeed, if only ten out of one billion people could figure out the solution. The solution must have been extremely nonobvious by any standard. But of course, those ten guys can't share the patent: one will receive it, the other nine will get screwed.

Our patent system has this property: when a large number of people all start working on a hard problem at the same time, then nine out of ten of those who find the solution will get screwed.

Unfortunately, in our very-connected world, it is extremely common for millions of people to start working on the same problem at the same time. All it takes is for some sort of problem or nuisance to affect millions of people all at once.

posted by: Josh Yelon on 05.04.07 at 12:56 PM [permalink]

Our patent system has this property: when a large number of people all start working on a hard problem at the same time, then nine out of ten of those who find the solution will get screwed.

Also, the patent only sometimes goes to anybody who's actually got a solution that's helping anybody.

posted by: Jon Kay on 05.04.07 at 12:56 PM [permalink]

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