Saturday, December 03, 2005

Patenting Methods Instead of Outcomes?

Given the prevalence of patent issues in the world of technology these days, it's quite apparent that sooner or later the intellectual property system is in need of a major overhaul before innovation in this country grinds to a halt due to patent litigation. Here's a rough-draft proposal for a way to restructure patents and copyrights to make life easier for everyone.

First, the concept of patenting an outcome needs to be abandoned. I don't have any legal training about patent law, but from those patents I've read through work, it appears that a patent is generally structured to cover a device or method that produces a particular outcome. For the purposes of understanding the device or method in question, this makes sense, but from a patent coverage issue, it seems to have gotten out of hand. For example, if I were the Wright Brothers and I wanted to patent my idea for an airplane now, I would probably claim a patent on an "apparatus and method for achieving flight of a heavier-than-air device" or something to that effect. Not only is my design covered, but also any other design that achieves the same result. This does not seem reasonable. The purpose of patents in the first place was to encourage innovation. Most inventions solve pre-existing, well known problems through their outcome. Granting patents that covers any method of reaching that outcome serves to prevent someone else from creating an alternative method of solving the original problem and thus stifling innovation. Should I choose to issue no licenses on my patent of flying machines, the entire realm of aviation is held back to the rate at which I want it to develop. And if do want to license my patent, I can sit back and enjoy the royalties while others spend time and money investing in further development of my idea while I do nothing.

Instead, it should be the method that is protected, not the outcome. Someone should be able to come up with an alternative design for a flying machine, so long as it does not copy my design. The mechanism is patented, and any software involved is copyrighted. This is how publishing is (at least text publishing, multimedia is an entirely different animal). It would be absurd if an author were given the exclusive right to publish on a particular topic. Yet this is how the patent system works. In publishing, it is the author's words themselves which are copyrighted, not the idea. Another author may express the exact same ideas without fear of prosecution, so long as the work is not plagiarized. Mechanical and software inventions should be treated the same way. Patent disputes should be more like plagiarism disputes.

Patents serve to protect the owner's investment in development from someone else copying their design. But if someone else also invests the time and money to develop an alternative invention addressing the same problem, they should be free to do so. While the patent holder would not have a monopoly on the market for his device, the advantage would certainly go to the person who creates and markets their device first and so the incentive for innovation would remain.

There are, of course, downsides to this concept. In particular, evaluating whether a device copies another is not as straightforward as evaluating whether an author copied another's writing. But then again, patent disputes under the current regime are not straightforward either. Under the proposed system, though, inventors would be encouraged to seek ideas from other inventions, and so long as they conduct their development themselves, they can reasonably expect not to be infringing on another patent. They would still have to conduct a patent search to make sure that they are not copying a design, but they can freely design their own independent system without fear of infringing on another.

So this is a first crack at patent law reform ideas. I have no idea how to address multimedia intellectual property issues. I would probably favor as loose of rules as possible while still maintaining some protection for the upfront investment of the creators. Otherwise it would not be worth the effort to produce the work in the first place. But at the same time, the whole purpose of publishing is to spread the work to others, so overly restrictive copyright rules only serve to make it more difficult for this to happen. I suppose if there were an easy answer to this problem, it would have been thought of, and probably quickly copyrighted.


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