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Wednesday, August 1, 2012

Owning Ideas - The Legal Consequences

Its very troubling to me that the US Patent office recognizes the concept of owning an "idea."

Now let me be clear, I have no problem with the concept of owning a patentable physical invention, such as a razor.  This makes perfect sense to me because I have created something which has attributes that make it unique from other things - tangible attributes.  In the case of the razor a mechanism to open the razor, replace the blade, and close the razor - let's say.

But how does that work for an idea?

Everybody has ideas - many often the same.  Virtually everyone has probably had a moment in their life were someone will say "gee, it sure would be nice if X were done this way..." and someone else will say, "Yeah, I had that idea too..."

And what about genetics?

There has been substantial interest in the notion of patenting gene's.  For example, isolating a gene for resistance to a particular pesticide, e.g., RoundUp, and inserting that into seeds for sale.  Did you think up the gene or was it already there expressed by nature?  Though you might have done work in order to access that gene, or isolate it, can you really own it?

What happens if my genetically modified seeds grow into plants whose pollen spreads to other fields creating genetic hybrids? Is the person whose fields were so contaminated violating my "intellectual property" or "patent" by using the result?

And what about "owning" my own information.  If I buy a PS/3 game and it encrypts information I put into it - either directly or indirectly - do I own still own that information after encryption?  Even if its processed through propriety PS/3 software?  (See this article.)

And finally there is "Intellectual Property."

Property is something you "own."  How can you own an idea?  Now I might be able to own a piece of software that does something, like compress a file.  But what about the idea behind the compression, for example LZW.  LZW is a file compression scheme - an algorithm - used to make files smaller.  However, it is owned by a large company that sought to extract revenue from those making use of this idea.

So in the case of LZW what exactly is the property involved?  Does it require you to exactly perform a certain set of steps in a certain order?  What if you don't follow the exact sequence?

Businesses fear the uncertainty of these questions, I think, as much as the financial consequences of making a bad choice with regard to these questions.

A patent may say:  Calculate A by doing X to Y; Calculate B by doing W to Z;

What if my LZW algorithm does: Calculate B by doing W to Z; Calculate A by doing X to Y;

Are those two operations the same?  Clearly B and A are independent (presuming X, Y, W, and Z are as well).  So I am free to calculate them in any order.

Does the idea of LZW require me to do them in a specific order?

Is the result of my algorithm, which uses a different order, the same or different as that of the big company?  If its different then clearly my algorithm is unique.  If its the same am I some how violating the big company's intellectual property by achieving the same result differently?

By requiring physical inventions many of these questions can be eliminated - which was the case at the patent office until fairly recently.

But even that's not enough - how do I compare seeds for genetic similarities?

How can I be sure why those seeds are genetically different or the same?  Did someone grow them that way on purpose or did the "owner" of the genetic patent simply let their property "blow away" in the wind?

One of the things I see that is interesting is that, at least superficially, the notion of "Apps" seem to be taking software away from this mire of legal misery.  Not so, obviously, for the hardware side (see the current news on the Apple/Samsung patent wars).

The "App" world, however, moves more quickly.  (There has been some problems at the level of "in app purchase" where Apple claims to have licensed a patent for all App Store developers and the patents owner claims otherwise.)

In general there seems to be less litigation - perhaps because the Apps have such a low price and only attract legal interest if their sales volume - which is private - is known.

One strategy in the App world seems to be "not to have all your eggs in one basket."

Spreading development risk and dollars across ten apps means that, if the apps are good, some will "survive" to produce revenue even if one or two are picked off by competing legal interests.

At the bottom of all this is another, more fundamental problem (see this article).

There are no such things as absolutes in patents, particularly in software or "method" (non-physical device) patents.

Often the patent office makes conflicting decisions.  Two different things are the same and one is denied a patent, or worse, two different approaches to the same solution are both independently patented.

Like our current financial state in the US only one thing is certain - its broken.

And with so many "vested interests" - such as lawyers - its hard to see it every changing.

But what's the fix?

Some arbitrary entity that "decides" all patent cases?  Based on what - industry groups manned by the very people that would stand to win or lose for a particular decision?

A patent office ten times the size of the current on manned by the same bureaucrats who already make bad decisions?

I don't have any answers today - but I wish I did...

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