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Thursday, June 21, 2012

Apps, Children, and Legal Loop Holes

First US Patent circa 1790 for making Potash
Its always been interesting to see what people think about "owning ideas."

Here in the US there are two forms of government-sponsored "idea ownership."

The first is copyright law.  I can write something unique (or create art) and I can ask the government to recognize this with a copyright.

There is also patent law.  Originally this was for "inventions" - physical devices.  (In fact, early on the US Patent Office required working inventions before issuing patents.)  A patent is a document that describes some sort of device or process (today this includes software as well).

In both the case of patent and copyright the registered "owner" is said to own the intellectual property defined by the patent or copyright.

Today the primary uses of this seem to be the right to license and the write to sue.

As a software developer I create an application.  I make sure I record a copyright for this software and I ensure that when it runs it emits a copyright notice (it may also include this in the executable code as well).  As the owner I can cause this software to be licensed by others: and end user or, as in the case of MIDIProbe for example, sold through the iTunes store.

Copyright ensures that Apple, for example, does not suddenly claim ownership of my application.

In my experience copyright is fairly easy to manage.  In the case of an iTunes app, for example, I can show via backups the entire history of the products development which in general makes it clear who owns it (not withstanding some other agreements or documentation to the contrary).

Copyright is always clear because a copywritten work contains a copyright notice: a piece of software, artwork (songs and physical art - you can register it with the US government without marking the actual item).

Patents are a somewhat different story from copyright.

In a patent you make one or more claims, usually about how something works: the wizzel connects via the froom to the bandersnatch, as the wizzel rotates the bandersnatch rotates causing...

Once you own a patent no one else can use the same process as your patent describes.

In the case above no one else in the US can have a wizzel rotating a bandersnatch via a froom.

But what does that mean?

To start with the it means that the patent office could not find another example of the same thing - though that does not mean there isn't one somewhere.  If, in my case, a wizzel is an electric motor, a froom a shaft, and a bandersnatch a wheel then its unlikely, but not impossible, that I will receive a patent because the notion of a electronic motor driving a wheel via a shaft is neither new or unique.

Unfortunately, if the patent examiner does not delve deeply enough into my terminology and discover this he or she may grant me a patent.  And given such a patent I may then go off and attempt to sue others using the motor/shaft/wheel concept.

Now this example is pretty simple-minded.  But imagine instead some complex 100,000 line software program instead of the motor/shaft/wheel.  Imagine to software, for example, scans some images and picks out some aspect of the image, e.g., a finger print.

How might a patent examiner know what else has been done along these lines? 

What about other uses of image processing unrelated to finger prints?

What about equivalent algorithms that some other patented (or rejected) invention uses.

The problem here is that things become complicated quickly: first in the patent office because there are so many invents submitted each year (millions) and second because accurately evaluating these requires vast and advanced knowledge in each field the invention addresses.

Third, upon being granted, there is no certainty that someone else may have also patented the same idea in a different form.

Unfortunately, as I wrote about with Google and Oracle, disagreements arise ("Google's Waterloo - US Patent 6,061,520")

(I was both right and wrong about this. I predicted Google would lose and they did - with damages of $0 USD.  Oracle is appealing - this is why they took the $0 - so I guess the jury is still out...)

So, unlike copyright, patent law creates unpredictable outcomes - not to say there can't be copyright disputes (such as this about an author reusing their own work in Ars Technica).

So think about copyright in this context:  A Scientific American article dated December 8, 2011 by Both experiments are said to have seen evidence of the long-sought Higgs, pointing to a particle mass of around 125 billion electron volts, or 125 GeV. (125 billion electron volts is roughly the mass of 125 hydrogen atoms.)* Such results would not constitute an ironclad discovery quite yet, being below the required "5 sigma," a measure of statistical reliability. But the two experiments are rumored to have seen signals of 2.5 sigma and 3.5 sigma, which together would give a strong hint.

In December, rumors circulated regarding hints of the Higgs around 125 gigaelectronvolts (GeV), roughly 125 times the mass of a proton. While those rumors eventually turned out to be true, the hard data only amounted to what scientists call a 3-sigma signal, meaning that there is a 0.13 percent probability that the events happened by chance. This is the level at which particle physicists will only say they have “evidence” for a particle."

Try Googling for "ironclad discovery quite yet, being below the required 5 sigma" - many, many blog articles turn up using exactly this phrasing for example.

I see quite a bit of this when I research my blog entries.  Both entries seem very similar - quoting similar numbers, related values, and so one.  Of course, both are probably based on yet another article, perhaps from the LHC group...

The problem is how close is too close in copyright?

Then there is this Ars Technica article claiming that an author wrote the same words twice for two different employers.  Thinking about the 125 GeV above how different can you make two separate reports about that event sound?

On the one hand I don't think its fair if someone plagiarizes the work of another.

On the other how different do we expect two articles written about the same event, even by the same author, to be if they are to be factual?

The problem, I think, is that patent and copyright law were created during a time when movable print was still a relatively new item and there was not a lot of "printed" content in the world.  This made it possible to actually examine particular cases in detail.

Similarly patents required physical inventions - something that was costly in the early 1800's.  You didn't get involved in serious R & D unless you had the funding and there was little point in stealing someone else's work.

Today, according to this WSJ article, 13 year old's are writing and selling apps on-line.

What do they know about copyright or patent law?

Yet if they hit it big with a game, for example, you can imagine the field day the lawyers will have...

At the end of the day no amount of "law" will fix this - only morality.

But today's model as often as not seems to be "I'll grab what I can and let the lawyers protect me while I do..."

Not something either the copyright or patent laws of the US were designed to support.

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