Patently Absurd
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Part 2: Big vs. Small; Politics Out of Joint
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Patents are widely supposed to protect the lone inventor, the pioneering genius in a garage, against the predation of big companies. Historically the opposite has been been true. As basic industries like electricity, telephony and broadcasting developed in the 20th century, the great corporations learned to create arsenals of interrelated patents to use as sword and shield. "The wise people, with good patent lawyers, patent a whole system," says Thomas P. Hughes, a historian of technology at the University of Pennsylvania." Although small companies can get patents, the big companies can afford to litigate — "when it comes into court, guess who's going to win." Absurd patents can be fought and overthrown, but, on average, to challenge a patent costs more than $1 million.
   "Even under traditional patent rules, many of these software patents will turn out to be bad patents," says Lessig at Harvard, "but in the meantime they create these little mafia monopoly holders who can go around demanding, with a federal court behind them, that you pay up or we'll shut you down."

A genuine U.S. patent:
Method of Bra Size Determination by Direct Measurement of the Breast

"A method of direct measurement to determine cup size of the breast which includes band size measurement by initially measuring the user's chest or torso circumference with a flexible tape measure immediately below the breasts followed by the step of adding five inches to the measured number and incorporating conventional rounding-off procedures."

   Patent battles have become a strong catalyst for mergers, reducing competition in various domains. The largest corporations, with gigantic patent portfolios, routinely enter into cross-licensing agreements with their largest competitors. Companies without portfolios of their own have to pay cash, representing a sort of tax within the high-tech economy, and the numbers are skyrocketing: costs in the U.S. for patent licenses were about $15 billion in 1990; eight years later they had soared to more than $100 billion. IBM alone took in well over $1 billion last year and received a record 2,756 new patents. The top ten recipients of U.S. patents also comprised Motorola, Lucent (home of the former Bell Laboratories), and seven Asian computer companies.
   Those lone inventors are out there nonetheless, dreaming of the patent that will make them rich, and they are familiar species of fraud victim. An entire industry of invention promoters promises to help inventors get patents, usually charging thousands of dollars in fees that are virtually never recouped. Hopeful inventors show up in person at the patent office in Crystal City, Va., many returning month after month, some eschewing the all-day application window to bring their files directly to the commissioner's office.       

At first, the awarding of a patent was special — a profound and unusual act. Under the original patent law of 1790, the examiners who met to consider each invention were none other than the secretary of state, the secretary of war and the attorney general: thus Thomas Jefferson, Henry Knox, and Edmund Jennings Randolph awarded the first U.S. patent on July 31 for a process of making potash. They issued two more patents that year. Gradually the patent system grew and became associated with the American inventive spirit. Patents seemed not only to reflect the young nation's technological genius but to have fomented it. At a time when information moved slowly, patents created an unparalleled storehouse of how-to data about technology, and a pipeline for sharing that information.
   They also became a source of prestige and distinction; after all, to be an inventor was to be a patent-holder, and vice versa. "The patent system added the fuel of interest to the fire of genius," said Abraham Lincoln, himself the proud holder of U.S. Patent 6,469 ("Device for Buoying Vessels over Shoals"). Even so, it took 46 years of growing bureaucracy and accelerating output to produce a total of 10,000 American patents. Now the patent office issues that many patents every three weeks. A single examiner can approve a patent, without review from supervisors or the commissioner. "If an examiner allows a case," one examiner says, "not even the president of the United States can force him to change his mind. Then there's the Supreme Court, and they're kind of busy." Each examiner is a specialist, meant to be familiar with the landscape and the "prior art" background for particular types of technology. But for the ethereal new realms of software and business methods, especially, the system has broken down. Through most of the young history of software engineering, the state of the art has been carried around in the heads of young programmers working late nights in offices strewn with soda cans and pizza boxes, not in academic journals suitable for indexing and perusal by patent examiners. Examiners give most weight to their own database, anyway, treating the 6 million existing U.S. patents as a sort of filing cabinet of all human knowledge.
   "The U.S. patent office is just not competent to examine software patents," says Gregory Aharonian, a consultant and publisher of a widely read patent newsletter. "Eighty percent of software patents effectively cite nothing from the computing literature. To me it's a kind of contempt." He contends that the patent office has neither the time nor the expertise needed to distinguish good patents from bad.
   "It's a cold war," he says. "It's just people playing legal games.."
   The patent office has become a place where the essential politics — the checks from contending interests — are out of balance. The voices heard daily at the patent office belong to people who like patents, want patents, and rely on patents for their living; their creed is, the more the better. Officials measure their own performance in terms of their output. It's as if they were a manufacturing company turning out product.
   The agency is proud, too, that foreign companies have been stepping up their applications for U.S. patents on their software and business-method ideas; so far, the European and Japanese patent systems have been less willing to grant protection for these. Meanwhile, the dollars-and-cents reality of running the American patent office has also encouraged the patent explosion. In 1991, the patent office was cut off from general tax revenues and required to subsist entirely on fees for its operating budget. The political argument was that customers should pay for government services. Thus, officials think of their fee-paying patent applicants as their customers: the more the better, again. Examiners know that their year-end bonuses depend on productivity. The people interacting regularly with patent officials and examiners — their obvious clientele and customer base — are inventors and inventor representatives.
   Each morning, as Commissioner Dickinson arrives at his Crystal City office, he walks past a framed poster bearing the motto:

Our Patent Mission
     To Help Our Customers Get Patents

It's virtually forgotten that the government's customers also include the rest of the nation, the citizenry at large, whose fortunes depend on the agency's judgments and policies.

Part 3: Software and cyberspace as machinery.


               Copyright 2000 James Gleick