Patents as weapons of mass destruction

November 3, 2012

The Patent Office is the mother-in-law of invention.  Anonymous

Next came the patent laws. These began in England in 1624, and in this country with the adoption of our Constitution. Before then any man [might] instantly use what another man had invented, so that the inventor had no special advantage from his own invention. The patent system changed this, secured to the inventor for a limited time exclusive use of his inventions, and thereby added the fuel of interest to the fire of genius in the discovery and production of new and useful things.  Abraham Lincoln

Don’t negotiate with terrorists; patent trolls have done more damage to the United States economy than any domestic or foreign terrorist organization in history, every year. Entrepreneur Drew Curtis during a TED presentation.

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 For the last few years the world’s biggest technology companies have been embroiled in a series of acrimonious legal disputes. Apple, Google, Samsung Microsoft, HTC HP, Amazon and others have being suing one another in courts around the globe, alleging that they are infringing one another’s patents. Steve Jobs famously threatened to “go thermonuclear” over what he saw as Android’s ripping off of the iPhone. Indeed, Apple recently won an important legal victory over Samsung in the U.S. courts. All this litigation has been a goldmine for lawyers. In the smartphone industry in the past couple of years, as much as $20 billion has been spent on patent litigation and patent purchases. Why has it become such a controversial and expensive area of the law?

A patent is the government grant of monopoly on an invention for a limited amount of time. Different countries have different periods of time; a typical period is around twenty years. The economic rationale behind granting patents is relatively clear; imitation is a lot cheaper than innovation. If there were no patents, then someone who invested time and money to create a valuable invention would not necessarily be rewarded commensurately. Not every idea is susceptible to being patented; In order for a patent claim to be valid, the invention must be “useful,” “novel,” and “nonobvious.”

Patent trolls have become an important force in patent litigation in the last few years. This pejorative term is used for a person or company that enforces patents against one or more alleged infringers in an aggressive or opportunistic way, with no intention of making or marketing the patented invention. Patent troll was popularized in 2001 by Peter Detkin, former assistant general counsel of Intel, to describe TechSearch, its CEO, Anthony O. Brown, and their lawyer, Raymond Niro, while Intel was defending a patent suit against them. He first branded the litigants “terrorists”, but they threatened to sue him for libel. So he decided to organise a competition:

… we got a lot of suggestions, but none really fit. But at the time my daughter was, I think, four or five and she liked playing with those little troll dolls. The original one, in fact, is still in my office. And so I turned to her and I said, oh, the story of a troll kind of fits because the whole Billy Goats Gruff thing. It’s someone lying under a bridge they didn’t build, demanding payment from anybody who passed. I said, how about a patent troll?

There is a less loaded term for such companies – NPEs, non-practising entities. One of the key players is Nathan Myhrvold. The former Chief Technology Officer at Microsoft is co-founder of Intellectual Ventures, one of the top-five owners of U.S. patents. Its business model is focussed on developing a large patent portfolio and licensing these patents to companies. Intellectual Ventures has received a little over 1,000 patents on what they’ve invented in their labs, but they have bought more than 30,000 patents from other people. They claim that their goal is to assist small inventors against corporations. It could be someone with a brilliant idea. He has a patent, but despite this, companies are stealing his idea and he has neither the money nor legal nous to stop them. Intellectual Ventures can buy this inventor’s patent and make sure that companies who are using the idea actually pay for it. Curiously, Peter Detkin, who coined the term “patent troll” now, works for Intellectual Ventures.

I do think that patents are a good idea, but we need to be aware that there are downsides. By creating a monopoly you are imposing higher prices on consumers. And patents can also have a negative effect on innovation, becoming a toll gate on the road of innovation. Opponents of patent trolls point to the statistics about their economic impact. From 2004 to 2009, the number of patent infringement lawsuits jumped by 70%, while licensing fee requests went up 650%. According to James Bessen, the costs of patent litigation exceed their investment value in all industries except chemistry and pharmaceuticals. In the software industry, litigation costs are twice the investment value.

One noticeable trend is that companies are patenting concepts. Companies come up with a concept, and they file the patent for this concept before they actually figure out how to convert it into a product.  It becomes a race to get your invention to the patent office first. When you have vague, overreaching patents, it becomes harder for people and companies to innovate without falling foul of them. One of the more ridiculous examples of the granting of a patent must be Amazon patenting their one-click buying system. Then there is Drew Curtis’s company Fark.com, which was sued along with Yahoo, MSN, Reddit, AOL, TechCrunch and others by a company called Gooseberry Natural Resources. Gooseberry owned a patent for the creation and distribution of news releases via email! And finally last year Google was sued over its Google Offers business venture. This is like those daily offers I receive from Groupon on my PC every morning.

The federal lawsuit, which was filed in Delaware, involves four patents owned by research firm Walker Digital. They have also sued Amazon and the aforementioned Groupon. In fact, there were some 100 companies involved. They were all accused of infringing the following patents:

7,039,603: “Settlement systems and methods wherein a buyer takes possession at a retailer of a product.”

6,249,772: “Systems and methods wherein a buyer purchases a product at a first price and acquires.”

6,754,636: “Purchasing systems and methods wherein a buyer takes possession at a retailer of a product.”

7,689,468: “Purchasing, redemption and settlement systems and methods wherein a buyer takes possession at a retailer.”

The cases were settled out of court with Walker Digital receiving $25m. The previous November they had sued Facebook for friending, or “Method and system for establishing and maintaining user-controlled anonymous communications“.

Invention is always going to be a minefield. History is littered with inventors unable to benefit from their creations. You need to strike a balance between protecting inventors and having a system that chokes off further innovation. It has to be said so far technology does seem to be a pretty vibrant sector. Of course this may be despite the patent system. Judge Richard Posner has argued that patents are unnecessary. He contends that even if other companies and copy and imitate their products, Apple will still be more than adequately compensated for their investment in research and development. I wouldn’t go as far as Posner but I would like to see more flexibility. How about 3-year patents in technology? And I would like to see them issued a little less liberally. In August two congressman brought in the SHIELD (Saving High-tech Innovators from Egregious Legal Disputes) Act, a bipartisan bill aims to bring in a “loser pays” system for software and hardware patent lawsuits, to protect start-ups from companies that want to force settlements through the threat of high legal bills. However, there is no perfect system. Individuals and companies will always try to game the system.


The Etymologicon #3

November 3, 2012

Here is my final selection from  Mark Forsyth’s wonderful book, The Etymologicon: A Circular Stroll Through the Hidden Connections of the English Language, book which looks at the unexpected connections between words:

Heroin

Once upon a time, cough medicines all contained morphine. This made people worried. You see, morphine is addictive, which meant that if you had a bad cold and took the cough medicine for too long, you might cure the cough but wind up physically dependent upon the remedy. The poor cougher of a hundred years ago was therefore faced with a choice: keep hacking away, or risk becoming a morphine addict. Many chose the cough. So in 1898 a German pharmaceutical company called Bayer decided to develop an alternative. They got out their primitive pipettes and rude retorts, and worked out a new chemical: diacetylmorphine, which they marketed as a ‘non-addictive morphine substitute’. Like all new products it needed a brand name. Diacetylmorphine was alright if you were a scientist, but it wasn’t going to work at the counter of the drugstore. They needed a name that would sell, a name that would make people say: ‘Yes! I want to buy that product!’ So Bayer’s marketing chaps set to work. They asked the people who had taken diacetylmorphine how it made them feel, and the response was unanimous: it made you feel great. Like a hero. So the marketing chaps decided to call their new product heroin. And guess what? It did sell. Heroin remained a Bayer trademark until the First World War; but the ‘non-addictive’ part turned out to be a little misguided.

Water Closets for Russia

In 1911, Winston Churchill was moved from the position of Home Secretary and became First Lord of the Admiralty, where he was in charge of developing new and more lethal methods of killing the enemy.

One of the ideas that he oversaw was the landship. The oceans of the world were, at the time, dominated by the Royal Navy. Britannia ruled the waves. Huge steam-powered gunships chuffed around the globe making sure that the Sun never set on the British Empire. These ships were covered in iron, so that they were immune to enemy fire, and they had huge guns mounted on them, so that they could destroy others. However, on land Britain was not so invincible. The British army still consisted of men and horses, which are made of flesh rather than iron and could be killed in their millions.

So, under Churchill’s supervision, a plan was hatched to take the principle of the iron-clad warship and apply it to land warfare. The British started to design the landship. It would be iron, like a warship, it would be motorised, like a warship, and it would have guns mounted on it, like a warship. It would be a destroyer, but it would be used in the field and not in the sea.

The idea was pushed forward by an officer called Ernest Swinton. Plans were drawn up and manufacturers approached, but everything was done in deadly secrecy. No mention of landships was ever made in public, which is why they aren’t called landships today.

The landship was such a secret that not even the workers in the factory where they were built were to know what they were. By the outbreak of war in 1914, Russia was fighting on the Allied side, so Swinton decided that a good cover story for the new weapons would be to say on all documents that they were Water Carriers for Russia, but when Swinton told Churchill about his ruse Churchill burst out laughing.

Churchill pointed out that Water Carriers would be abbreviated to WCs and that people would think that they were manufacturing lavatories. So Swinton had a quick think and suggested changing the name to Water Tanks for Russia. Churchill could find no objection to this codename, and it stuck.

Well, it didn’t all stick. Water Tanks for Russia was a bit cumbersome, so water got dropped. Then it turned out that the tanks weren’t going to Russia at all. They were going to the trenches on the Western Front, so Russia got dropped too. And that’s why tanks are called tanks. If Winston Churchill hadn’t been so careful about lavatorial implications, they might have been called carriers. If Swinton hadn’t been so careful, they would definitely have been landships.

Queen Gunhilda and the Gadgets

Gunhilda was the Queen of Denmark in the late tenth and early eleventh century. She was married to Sven Forkbeard and, as is the way with Dark Age queens, that’s all we really know about her. She was the mother of Canute the Great (he of the waves), and presumably she helped her husband out with his beard every morning. She must also have known her father-in-law, King Harald I of Denmark, who lived from 935 to 986 AD.

King Harald had blue teeth. Or perhaps he had black teeth. Nobody’s quite sure, as the meaning of blau has changed over the years. His other great achievement was to unite the warring provinces of Denmark and Norway under a single king (himself).

In 1996 a fellow called Jim Kardach developed a system that would allow mobile telephones to communicate with computers. After a hard day’s engineering, Kardach relaxed by reading a historical novel called The Longships by Frans Gunnar Bengtsson. It’s a book about Vikings and adventure and raping and pillaging and looting, and it’s set during the reign of Harald Bluetooth.

Jim Kardach felt he was doing the king’s work. By getting computers to talk to telephones and vice versa he was uniting the warring provinces of technology. So, just for his own amusement, he gave the project the working title of Bluetooth.

Bluetooth was never meant to be the actual name on the package. Blue teeth aren’t a pleasant image, and it was up to the marketing men at Kardach’s company to come up with something better. The marketing men did come up with something much blander and more saleable: they were going to call the product Pan. Unfortunately, just as the new technology was about to be unveiled, they realised that Pan was already the trademark of another company. So, as time was tight and the product needed to be launched, they reluctantly went with Kardach’s nickname. And that’s why it’s called Bluetooth technology.

Beards

The number of hidden beards in the English language is quite bizarre. Bizarre, for example, comes from the Basque word bizar or beard, because when Spanish soldiers arrived in the remote and clean-shaven villages of the Pyrenees, the locals thought that their bizars were bizarre.

The feathers that were stuck into the back of arrows were known by the Romans as the beard, or barbus, which is why arrows are barbs, and that’s ultimately the reason that barbed wire is simply wire that has grown a beard.

Barbus is also the reason that the man who cuts your beard is known as a barber. The ancient Romans liked to be clean-shaven, as beards were considered weird and Greek, so their barbers plied a regular and lucrative trade until the fall of the Roman Empire. Italy was overrun by tribesmen who had huge long beards which they never even trimmed. These tribesmen were known as the longa barba, or longbeards, which was eventually shortened to Lombard, which is why a large part of northern Italy is still known as Lombardy.

The Romans by that time had become effete, perhaps through a lack of facial hair, and couldn’t take their opponents on. If they had been more courageous and less shaven, they could have stood beard to beard against their enemies, which would have made them objectionable and rebarbative.

What the Romans needed was a leader like General Ambrose Burnside, who fought for the Union during the American Civil War. General Burnside had vast forests of hair running from his ears and connecting to his leviathan moustache. So extraordinary was his facial foliage that such growths came to be known as burnsides. However, Ambrose Burnside died and was forgotten, and later generations of Americans, reasoning that the hair was on the side of the face, took the name burnside and bizarrely swapped it around to make sideburns.

And it’s not only humans that have beards, nor only animals. Even trees may forget to shave, namely the giant bearded fig of the Caribbean. The bearded fig is also known as the strangler tree and can grow to 50 feet in height. The beards and the height and the strangling are connected, for the tree reproduces by growing higher than its neighbours and then dropping beard-like aerial roots into their unsuspecting branches. The beards wrap themselves around the victim until they reach the ground, where they burrow in and then tighten, strangling the host.

There’s an island in the Caribbean that’s filled with them. The natives used to call it the RedLand with White Teeth, but the Spanish explorers who discovered it were so impressed with the psychotic and unshaven fig trees that they called it The Bearded Ones, or Barbados.

Cynical Dogs

The Cynics were a school of ancient Greek philosophy, founded by Antisthenes and made famous by his pupil Diogenes.

Diogenes was, by any standards, an odd chap. He lived in a barrel in the marketplace in Athens and used to carry a lamp about in broad daylight, explaining that he was trying to find an honest man. His one worldly possession was a mug that he used for drinking. Then one day he saw a peasant scooping water up with his hands and immediately threw his mug away. Accounts of his death vary, but one story is that he held his breath.

Cynic meant doglike. But why was Diogenes’ school known as the dogs?

There was a gymnasium near Athens for those who were not of pure Athenian blood. A gymnasium in ancient Greece wasn’t exactly the same thing as a gymnasium today. For starters, it was an open-air affair. It was more of a leafy glade than a building filled with parallel bars and rubber mats. People did do their physical training at the gymnasium, in fact they did it naked. The word gymnasium comes from the Greek gymnazein, meaning to train in the nude, which itself comes from gymnos, meaning naked. But if you could take your mind off the naked boys (which many Greek philosophers found difficult), gymnasiums were also places for socialising and debating and teaching philosophy. Diogenes’ gymnasium was known as the Gymnasium of the White Dog or Cynosarge, because a white dog had once defiled a sacrifice there by running away with a bit of meat.

Diogenes, not being a native Athenian, was forced to teach in the Dog’s Gymnasium, which is how one hungry and ownerless canine gave his name to a whole philosophical movement. A fun little result of this is that any cynical female is, etymologically speaking, a bitch.