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Cybernaut

Patently wrong

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Lawsuits abound in the high tech world, as companies scramble to patent the obvious, and claim rights for concepts in perpetuity they had no intention of making and marketing. The result is that companies probably spend more time at the patent office trying to protect their intellectual property, and in the courts trying to defend said property, than in the labs actually coming up with something new.

I can see why it’s come to this — companies like Microsoft and Apple invest billions in research and development, and file patents for everything they work on to ensure that they alone can benefit from the results of that research until other companies find a legal way to copy them.

But in many cases, intellectual property is already protected by copyright laws. All patenting some idea does is ensure that any company that comes up with a vaguely similar idea — and possibly executes it better — is fair game for patent infringement lawsuits. Some companies make their living filing patents for ideas they have no intention of developing, usually variations on existing technology, then either collecting royalties from those ideas when someone makes it work or suing them if the company refuses to pay royalties.

The extent of patents is absurd, and crosses into a many gray areas. For example, Monsanto has patents on the seeds for its crops, and sues farmers who collect seeds from their genetically modified products. In one high profile case they successfully sued a farmer who claimed never to have planted Monsanto seeds, but somehow wound up with a batch of Monsanto-patented Canola on his property. Whether it was a mix-up at the seed store, the result of species cross-pollenation, or seeds falling off a truck is unknown, but one Saskatchewan farmer was robbed of his retirement money.

Patents are extending into life itself, with people patenting genetically modified animals or animals that have been bred to have certain traits. Human genes, the building blocks of biology, are also being patented, along with the findings of stem cell research.

It’s gotten to the point where patents are ruling several important industries we have become reliant on, including high technology, medicine and pharmaceuticals. It’s all about being the first to have an idea and get it to the patent office. Patents even come before research and development, before the first prototypes are built and tested.

Most of the major tech firms out there are preoccupied with one or more patent cases with their competitors, and last week Microsoft announced that it was preparing to defend 245 patents, more than 40 of them turning up in the open source Linux platform. They probably do have a case, but at the same time there’s a huge problem with patenting software that is already protected by copyright.

For one thing, most software is built using a common set of programming languages that are not in themselves patented. As a result, most programmers start with the same set of protocols and parameters, building on established kernels to assemble programs in the shortest possible time. At the root, all software has something in common with other software.

Furthermore, even if the specific programming does not overlap with enough similarities to file a patent suit, the way that software operates can be patented to some extent. If one piece of software does the same general thing in roughly the same way as another piece of software, the first company to patent the idea has a case no matter who thought of the software, or perfected it, first.

As a result of growing patent confusion and litigation, the U.S. Patent Office is considering a massive overhaul over how patents are awarded and defended.

In the recent issue of Wired Magazine ( www.wired.com ) there is an article called Wired News Readers Fix the Patent System. In the article various readers share their own ideas about how to solve all the patent issues out there and free up industry to innovate once again.

 

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