Speaker 1: Brought to you by the reinvented two thousand twelve Camray.
Speaker 1: It's ready. Are you get in touch with technology? With
Speaker 1: tech Stuff from how stuff works dot com. Hello, everyone,
Speaker 1: welcome to tech stuff. My name is Chris Poulette and
Speaker 1: I am an editor at how stuff works dot com.
Speaker 1: Sitting across from me, as he typically does unless he
Speaker 1: happens to be standing at the time, is senior writer
Speaker 1: Jonathan Strickland. I suited Ben Affleck. Do I even need
Speaker 1: a reason? Identify the source of the quote and you
Speaker 1: get Okay, you don't get anything, but you know, feel
Speaker 1: free to write in Yes, it's patently absurd to suggest
Speaker 1: you would get something. See what I did there. Yeah,
Speaker 1: we're gonna talk about the patent wars today and actually this, uh,
Speaker 1: this topic comes to us courtesy of a little listener mail.
Speaker 1: This listener mail come from Jim, and Jim says, I
Speaker 1: know you did some podcasts on i P that's intellectual
Speaker 1: property for everyone out there, but I don't remember if
Speaker 1: you did one on patents exclusively. If not, you may
Speaker 1: want to consider one. I'm raring this because of the
Speaker 1: past weeks this American Life on NPR, when patents attack
Speaker 1: it's about how patent troll companies that buy up patents
Speaker 1: with broad software coverage such as this patent covers real
Speaker 1: time backup of files, and then they sue any software
Speaker 1: company large or small that maybe doing backups. You wouldn't
Speaker 1: want to retell the whole story, but the idea of
Speaker 1: patentrolling could be a part of the describing patents were
Speaker 1: you to do a podcast on. So, yeah, we thought
Speaker 1: we'd talked a bit about patents, and before we really
Speaker 1: jump into it, I wanted to point out that at
Speaker 1: how stuff works dot com we have a great article
Speaker 1: on how patents work and it really breaks down what
Speaker 1: patents are and and their purpose. And we're gonna kind
Speaker 1: of cover some of that first, I think, because that's
Speaker 1: important to understand before we go on into you know,
Speaker 1: patent trolls and nonpracticing, into into ease and that kind
Speaker 1: of thing. So, Chris, are you comfortable in telling everybody
Speaker 1: what a patent is? Of course, patents come off of
Speaker 1: the idea of, uh, the ability for someone to protect
Speaker 1: their work. It's sort of similar in some ways to copyright, um,
Speaker 1: but you know, it depends on what it is. Now,
Speaker 1: if you have a if you've written a novel. You
Speaker 1: can't patent that, but you can't copyright it. And that's
Speaker 1: a way to protect your work so that you can
Speaker 1: sell it and make some money off of it and
Speaker 1: reap the rewards with that. Patents apply to those people
Speaker 1: who are and I always think of them as inventors,
Speaker 1: but it's not necessarily inventors. It could be engineers or
Speaker 1: other people. Um. In this case, we'll be talking a
Speaker 1: lot about software patents, which, by the way, before we
Speaker 1: even jump into it any further, I should point out
Speaker 1: there is no such thing as a software patent as
Speaker 1: an it's not a separate thing. A software patent is
Speaker 1: a patent. It's just that it's a patent that and
Speaker 1: it covers software. But there's no distinction between a software
Speaker 1: patent and any other type. No, no, no, it's not
Speaker 1: shorthand there are people who will get into this. There
Speaker 1: are people who believe that software should not be allowed
Speaker 1: to be patent, should not be you know, fall into
Speaker 1: that category. But that patent, I'm going to be doing
Speaker 1: that too. Yeah, it's it's okay. Yeah. Um, so no,
Speaker 1: a patented piper picked a peck up patents, yeah, pickled
Speaker 1: patents perhaps, Um, so yeah, patent basically is is a protection.
Speaker 1: It's a it's a registry for a particular type of thing. Um,
Speaker 1: you have a better mousetrap. Perhaps you register with a
Speaker 1: patent office. Yes, and in the United States that the
Speaker 1: United States Patent Office. Yes. Yes, And basically somebody reviews
Speaker 1: your application in which you describe what it is, how
Speaker 1: it works, what the parts are, how you know all
Speaker 1: these things. Um, and there's some really fascinating in the
Speaker 1: patent files. You can look at all these different diagrams
Speaker 1: for different inventions. Really kind of cool. But anyway, Um,
Speaker 1: once a a someone has reviewed that and says, yes,
Speaker 1: this does not work like the other ones before, it
Speaker 1: is completely the criteria that is necessary to have a patent. Yes.
Speaker 1: Then then it can be patented and on and that
Speaker 1: is on file as part of the public record. And
Speaker 1: if someone makes something that looks just like the one
Speaker 1: that you invented and works the same way and tries
Speaker 1: to make money off of it, you can see their
Speaker 1: pantsil right, or you can license the patent to someone
Speaker 1: else so that they can make something that's not the
Speaker 1: way people do it is how some people do it.
Speaker 1: It's yeah, Uh, software patents in particular have an issue
Speaker 1: with this, but we'll we'll get into that. That's that's
Speaker 1: the idea is that you can protect your work so
Speaker 1: that you may make money off of it, and other
Speaker 1: people cannot take your idea and make money off of
Speaker 1: it without your permission. Exactly. So, if I were to
Speaker 1: patent a an invention and Chris wanted to be able
Speaker 1: to build that invention, we might be come to an agreement,
Speaker 1: a licensing agreement, where he can use my idea and
Speaker 1: put it into reality. Because here's here's another thing about patents.
Speaker 1: You might come up with a brilliant idea brilliant invention.
Speaker 1: I've all the time, and so you come up with
Speaker 1: a brilliant invention, but you lack the resources to make
Speaker 1: that invention. You just you you know how to do it.
Speaker 1: You've got all the ideas in place, but you don't
Speaker 1: have the infrastructure to build this thing. Sad but true.
Speaker 1: I don't have a manufacturing facility in my backyard, right.
Speaker 1: So in that case, you would perhaps patent your invention
Speaker 1: or submit it to the patent office for for approval,
Speaker 1: and then once you've got approval, that's your ticket to
Speaker 1: getting that that idea licensed by a company or organization
Speaker 1: that has the capacity to put it into reality. Right,
Speaker 1: So you license the idea to widget coho goes off
Speaker 1: and makes them and packages them, and in return, you
Speaker 1: get a cut of the money that they make off
Speaker 1: of it because they hold a license for your patent.
Speaker 1: Actually that that works very similar to the way it
Speaker 1: works for writers and musicians who license their work to
Speaker 1: a publisher and then they get part of the So
Speaker 1: I mean they're not completely dissiminar And what's also interesting
Speaker 1: is that you can't you don't just have the option
Speaker 1: to license patents. You can actually sell a patent. Yes
Speaker 1: you can, because a patent is essentially property. Yes you know,
Speaker 1: it's intellectual property, intellectual property, and just like any other property,
Speaker 1: you have the right to dispose of it as you wish.
Speaker 1: So you can sell that patent to a company. If
Speaker 1: a company wants to make a certain type of product
Speaker 1: and you hold the patent that is, or a patent
Speaker 1: that is instrumental in that product getting made, that company
Speaker 1: might approach you and say, hey, if we drop a
Speaker 1: truckload of cash at your front door, will you sell
Speaker 1: us this patent? And you can choose to sell it,
Speaker 1: or you can choose to hold onto it truckload of
Speaker 1: So so there are companies out there that are just
Speaker 1: in the business of buying and selling patents. That's what
Speaker 1: they do. It's almost like it's almost like trading stocks
Speaker 1: or some other or real estate. Really it's it's trading
Speaker 1: property and that's their main purpose. And that's also led
Speaker 1: to some sticky situations and some name calling in various industries,
Speaker 1: the technology industry being a good example, because clearly technology
Speaker 1: it's all about innovation and invention. Yep, you know. And
Speaker 1: I actually thought of a of a real life example
Speaker 1: of these two models and they're actually uh in well,
Speaker 1: their their photos are in the room with us because
Speaker 1: Edison tried to He had all these inventions and he
Speaker 1: actually worked on building a company which is uh, you know,
Speaker 1: there was Edison General Electric. There version of General Electric
Speaker 1: today is not exactly anywhere. It's complicated. We'll have to
Speaker 1: do an episode on Edison at some point. Yeah, but
Speaker 1: um yeah, I mean he he had a company that
Speaker 1: you know, he built his company to make his stuff
Speaker 1: essentially and to wire people's homes and and do that.
Speaker 1: Um where Tesla actually worked with Westinghouse. Westinghouse licensed his
Speaker 1: patents and together they sort of I mean it was
Speaker 1: like Tesla was the inventor in Westinghouse was the industrialist
Speaker 1: who built on that work, but he licensed those those
Speaker 1: patents from Tesla, and there was I mean, there was
Speaker 1: some controversy with Tesla and patents. Tesla held some patents
Speaker 1: that he he was issued the patents by the United
Speaker 1: States Patent Office and then later the Patent Office overturned
Speaker 1: that decision and revoked his patents. Yeah, and so right,
Speaker 1: and so there's a lot of discussion about how the
Speaker 1: Patent Office isn't it's it's more than just a regulatory office.
Speaker 1: There's a political element that runs through this as well. Um,
Speaker 1: so yeah, it's uh, it's complicated. Now, let's talk a
Speaker 1: little bit about what you have to prove in order
Speaker 1: to to have a patent, have your your invention considered
Speaker 1: for a patent, to get patent approval. In order for
Speaker 1: your for you to get a patent, your invention needs
Speaker 1: to be sufficiently novel m. That means it has to
Speaker 1: be unlike other things that came before it enough to
Speaker 1: justify a patent. Now, we should also say a lot
Speaker 1: of this is subjective. You know, it's That's another part
Speaker 1: of patents that's a little tricky is that you know
Speaker 1: that there aren't any there's no real quantifiable measurement for
Speaker 1: how novels something like this is seven percent novel. Therefore
Speaker 1: it meets our threshold. Um, that's not really possible. Yeah, Basically,
Speaker 1: someone is looking at these patents. It's a human and
Speaker 1: humans are known to be subjective. And also the you know,
Speaker 1: it's depending on how complex this invention is. Uh, the
Speaker 1: person who's reviewing the patent may have some difficulty deciding
Speaker 1: how novel it is compared to something else, if especially
Speaker 1: depending on the language that's being used. Now, another thing
Speaker 1: that a patent that the invention must be is non
Speaker 1: obvious to someone. Uh, someone who's knowledgeable in the art,
Speaker 1: is the way we say it. So in other words,
Speaker 1: you can't patent an invention or a process that is
Speaker 1: patently obvious. You can't do something that you couldn't patent,
Speaker 1: like a lever, and you're patenting the process of pulling
Speaker 1: the lever, Well, that's obvious. You can't do that. Um.
Speaker 1: And this this is a tough concept as well, and
Speaker 1: it's one that we see brought up in courts a
Speaker 1: lot where the the one side will accuse another side
Speaker 1: of you know, let's say that Company A is suing
Speaker 1: Company B for patent infringement, and Company B is contesting
Speaker 1: the patents in the first place, saying that they are
Speaker 1: patenting obvious procedures, and it's it can be really difficult
Speaker 1: to prove whether or not something is obvious, because if
Speaker 1: that particular procedure didn't exist before Company A patent did it,
Speaker 1: then there's an argument there that, hey, the reason why
Speaker 1: it didn't exist before is because it wasn't obvious. It's
Speaker 1: obvious now because we invented it, you know, And that's
Speaker 1: a circular argument thing. I blame the boogie woogie bogle
Speaker 1: boy of Company B. But I mean, for example, to
Speaker 1: swiped unlock, that's a good one to say swiped to unlock,
Speaker 1: which is I believe Apple has that patent for swiping
Speaker 1: to unlock on a on a touch screen device like
Speaker 1: a smartphone or a tablet. Uh. There have been companies
Speaker 1: and lawyers who have argued that swiped unlock is not
Speaker 1: it doesn't meet the criteria of being non obvious. But
Speaker 1: then Apple would say, well, where was it before? Then
Speaker 1: who if if it was? If it if it was obvious,
Speaker 1: then why were we the first to do it? Um
Speaker 1: at least that that's that's oversimplifying the argument by many
Speaker 1: leaps and bounds, but essentially that's what they're saying, Yeah,
Speaker 1: I did. Working on issues like this makes me glad
Speaker 1: that I am not one of the people who has
Speaker 1: to decide whether patents get approved or not, because it
Speaker 1: in some cases, I imagine that pardon my use of
Speaker 1: this word in the context, it's not the same, uh.
Speaker 1: I think for some inventions or concepts, it would be
Speaker 1: more obvious that this is something that is completely different
Speaker 1: than other things, and then just having to educate yourself
Speaker 1: about what goes on with this particular thing or the
Speaker 1: software or the functionality. I'm glad I don't have to
Speaker 1: make those decisions. See here at how Stuff Works. We
Speaker 1: write about how stuff works, But if you were to
Speaker 1: be the ideal patent regulator, you'd have to know how
Speaker 1: everything works, because you would have to know if the
Speaker 1: invention that's coming towards you, if it's just replicating something
Speaker 1: that's already out there you know, or or you would
Speaker 1: look at and say that truly is novel, hasn't happened before.
Speaker 1: So other criteria that the invention must meet. Now we've
Speaker 1: said it has to be new, it has to be
Speaker 1: non obvious. It also has to be useful. That the
Speaker 1: invention has to have a use. It means that it
Speaker 1: serves some sort of purpose and it actually works. You
Speaker 1: can't patent something that does not work, that can't be
Speaker 1: demonstrated to work. You also, you cannot patent any sort
Speaker 1: of um element that occurs in nature, like you couldn't
Speaker 1: patent copper. It has to be man made. And then uh,
Speaker 1: you have to you can't use unproven ideas two in
Speaker 1: your patent. So anything that is contested by science, anything
Speaker 1: that that isn't proven by science theoret that you should
Speaker 1: not be able to get a patent on. So, for example,
Speaker 1: a perpetual motion machine should in theory not get a
Speaker 1: patent because science, uh tells us that such a thing
Speaker 1: is not possible, even though we still have people who
Speaker 1: pursue the dream of creating a perpetual motion machine. Leonardo
Speaker 1: da Vinci himself tried to do this with a weighted
Speaker 1: wheel and it didn't work out for him. And he
Speaker 1: actually said back that back in the day, which I
Speaker 1: think was a Thursday, that perpetual motion was an impossibility. Uh.
Speaker 1: And ever since we've been you know, still trying to
Speaker 1: do it, no one, no one has proven him wrong,
Speaker 1: by the way. Uh. So these are the criteria that
Speaker 1: your invention must meet in order to get a patent,
Speaker 1: and it can take years from the time you apply
Speaker 1: for a patent to the time you're issued a patent.
Speaker 1: And UH that raises the question, Okay, well what happens
Speaker 1: during that that span. What if someone else comes up
Speaker 1: with an invention that uses your idea and you haven't
Speaker 1: received a patent yet. Uh, that can get tricky. Sometimes
Speaker 1: when you get the patent, you can then pursue legal
Speaker 1: threats against whomever is using that that particular idea within
Speaker 1: an invention. Um. Oh. And also if there is something
Speaker 1: called prior art, then you may not be able to
Speaker 1: get a patent. And prior art just means that there's
Speaker 1: an example of the idea you have, the invention you
Speaker 1: have that already exists out in the wild and it
Speaker 1: there's you know, it has to have existed for a
Speaker 1: while and it has to have been publicized for it too.
Speaker 1: For this account, So what you're saying is that if
Speaker 1: there were, um, someone who filed for a patent, and
Speaker 1: somebody comes along and says, no, I came up with
Speaker 1: that idea two months before before you did, and they
Speaker 1: had sketched it out on a napkin and published it somewhere,
Speaker 1: were published maybe, and it would have to be more
Speaker 1: than two months. I think. I think the minimum is
Speaker 1: at least a year. But let's say that Let's say
Speaker 1: that that I patent an invention, and or I tried
Speaker 1: a patent and invention, but it's discovered that there was
Speaker 1: a magazine article that had a prototype divid ice uh
Speaker 1: detailed in that magazine, and that prototype device closely resembles
Speaker 1: my patent, the the application, the invention that I'm applying
Speaker 1: for a patent. The two things are very similar. That
Speaker 1: would could be an example of prior art. And if
Speaker 1: I were to try and get a patent, then someone
Speaker 1: could prove that this other device essentially does the same
Speaker 1: thing that my idea does, my patent might be invalid.
Speaker 1: So do you happen to know just can you guess
Speaker 1: who in human history holds the most patents in at
Speaker 1: least in the United States? M hmm, it's not Steve Jobs.
Speaker 1: No older, go go further back I think a lot
Speaker 1: of people would would be sitting here going no Edison.
Speaker 1: Edison would be who I would guess. Yes, one patents, Yeah,
Speaker 1: second place goes to someone else. So tell me if
Speaker 1: you can tell me who is in second place, and
Speaker 1: I'll give you a hint. It can be found in
Speaker 1: how patents work. But if you can let me know,
Speaker 1: that'd be awesome because it proves that you're actually paying
Speaker 1: attention and not just falling asleep to text stuff. We
Speaker 1: love you guys, by the way. We hope you have
Speaker 1: pleasant dreams anyway. Yeah, but you, however, are not allowed
Speaker 1: to go back to sleep. So now we've covered the
Speaker 1: basics of what a patent is, what it does, and
Speaker 1: why you would want one, and and patents secure your uh,
Speaker 1: your rights to that idea for a limited amount of time.
Speaker 1: Right you You can't hold the idea, Yeah, you don't
Speaker 1: hold a patent in perpetuity. It doesn't last forever. It
Speaker 1: will last for a certain number of years, and it
Speaker 1: all depends on where you live in the world. Like
Speaker 1: the different patent laws are have different amounts of time
Speaker 1: where your patent is protected um and ideally during that time,
Speaker 1: no one would be able to infringe upon your patent
Speaker 1: without the the threat of a loss. Not keep in mind,
Speaker 1: a patent doesn't automatically protect you from someone infringing on
Speaker 1: your idea. The patent just gives you a recourse if
Speaker 1: someone does infringe on your idea. And patent lawsuits are
Speaker 1: really expensive. So if you are an independent inventor and
Speaker 1: you do not license your idea out, and you don't
Speaker 1: have a lot of resources at your disposal, and someone
Speaker 1: starts to infringe upon your idea, you you might be
Speaker 1: at luck because you might not have the money to
Speaker 1: pursue a lawsuit. And uh, some whould argue, well, this
Speaker 1: helps license out ideas and it means that those ideas
Speaker 1: will actually propagate through society because you know, you've got
Speaker 1: an incentive to share your idea. Now you're sharing it
Speaker 1: for money, You're you're licensing it, and it means that,
Speaker 1: uh that we all benefit as a result because this
Speaker 1: idea gets actually put into use as opposed to let's
Speaker 1: say I never patent my idea. Let's say I never
Speaker 1: share my idea, Well, then no one benefits from it.
Speaker 1: That so the idea the patent office is really to
Speaker 1: encourage people to share their ideas. It's just that it
Speaker 1: hasn't always worked out that way, and that's what leads
Speaker 1: us to the patent wars. Yeah, and this has come
Speaker 1: up a lot recently, especially with UM Google's acquisition of
Speaker 1: Motorola and the battles going on between Apple and HTC
Speaker 1: and Microsoft and some of the others. And We've had
Speaker 1: several people mentioned this to us, and I've seen comments
Speaker 1: on on our Facebook page um about one company or
Speaker 1: another being a brat. Basically, this isn't, by any stretch
Speaker 1: of the imagination, something that just started happening. No, No,
Speaker 1: it's it's getting a lot more publicity now because the
Speaker 1: companies are that are involved are big consumer companies in
Speaker 1: one way or another. They may not directly create consumer products,
Speaker 1: because you would say that, all right, well, Google doesn't
Speaker 1: yet make anything specific for consumers, really, but they do
Speaker 1: provide the operating system that gets used in a lot
Speaker 1: of consumer products, so you would say, well, this is
Speaker 1: still kind of a consumer issue that that's probably why
Speaker 1: the publicity is so big. But these sort of things
Speaker 1: have been going on in behind the scenes for for decades.
Speaker 1: It's just that now it's really coming to a head
Speaker 1: as companies fight over each other to try and and
Speaker 1: buy up other companies just not just too, but primarily
Speaker 1: to get hold of the patent portfolio that that company
Speaker 1: might have. And the reason to get patent port portfolios
Speaker 1: there they're too. Two main reasons that a a company
Speaker 1: that's a practicing entity might want to get hold of
Speaker 1: a patent portfolio. The main one is defense, which is
Speaker 1: you get as many patents as you can so that
Speaker 1: if another company comes after you claiming that you're infringing
Speaker 1: upon their intellectual property, you can return fire and say, well,
Speaker 1: this is the intellectual property we own and you are
Speaker 1: in turn infringing upon that. And hopefully what happens as
Speaker 1: a result of this is the two companies, through arbitration
Speaker 1: and probably litigation, come to an agreement where both sides say,
Speaker 1: all right, I'm totally stealing ideas A through G and
Speaker 1: you're totally stealing ideas H through our and we will
Speaker 1: exchange this amount of money and then say we're all cool. Truce. Right.
Speaker 1: And if you if now, if you have one major
Speaker 1: company that doesn't hold a lot of patents and another
Speaker 1: company that does hold patents, then the what's going to
Speaker 1: happen is you just the company that holds a lot
Speaker 1: of patents, it's going to sue the other major company
Speaker 1: for money, and you don't. If you don't have your
Speaker 1: own large patent portfolio to fall back on. As a
Speaker 1: sort of a mutually assured destruction kind of approach, you
Speaker 1: you get run over. You know, you you essentially unless
Speaker 1: the the courts decide otherwise, who essentially have to cough
Speaker 1: up money and you may or may not have to
Speaker 1: even discontinue the production of certain products. Yep. And so
Speaker 1: that's kind of why we see these big companies scooping
Speaker 1: up uh, smaller companies in order to get patents. Sometimes
Speaker 1: it's for protection. Sometimes it's with an eye to go
Speaker 1: after a competitor and perhaps put that competitor in a
Speaker 1: a bad position. It's it's almost anti competitive when you
Speaker 1: get down to it. And as a result, you have
Speaker 1: a lot of people saying, well, this is really stifling
Speaker 1: innovation because by going after another company and saying that
Speaker 1: you can't make any of this because this part of
Speaker 1: it infringes upon our patents. Uh, you you're taking away
Speaker 1: things that are actually valuable in the marketplace. And it
Speaker 1: may very well be true that let's say that we
Speaker 1: have an operating system, that's a good one to go with. Okay,
Speaker 1: we're going to get into the software patents anyway. So
Speaker 1: you have an operating system where one aspect of that
Speaker 1: operating system appears to infringe upon a patent. Well, depending
Speaker 1: on how the lawsuit is worded and the decision of
Speaker 1: the courts, that operating system might end up having to
Speaker 1: be completely scrapped or rewritten or taken off the market,
Speaker 1: which means you lose everything. You don't just lose that
Speaker 1: one element that was infringing upon the patent, you lose
Speaker 1: all the other elements of that operating system. So you're
Speaker 1: losing out on innovation. This is why we're getting a
Speaker 1: lot of criticism directed at these patent wars. And another
Speaker 1: related element is that there are companies that some people
Speaker 1: refer to as patent trolls, which is a it's a
Speaker 1: complicated that's a complicated term as well, because it means
Speaker 1: more than one thing. Yeah, and I think of that
Speaker 1: I um, and this is again just one concept of UM.
Speaker 1: When I think of a patentrol, I think of a
Speaker 1: company that has purchased patents from someone else. Basically, they
Speaker 1: had some money up front, they bought patent rights. They
Speaker 1: don't do anything, but why since patents and they are
Speaker 1: basically hoping somebody will infringe upon them so that they
Speaker 1: can sue the living daylights out of them and make
Speaker 1: money that way. But they don't. It's it's not like
Speaker 1: where they are making in an iPhone and they are
Speaker 1: doing that and somebody else infringes on the patent. This
Speaker 1: is somebody in my head. The classical patentrol is literally
Speaker 1: just waiting for somebody to infringe on their patents so
Speaker 1: they can take a shot at them. Right. That's that's
Speaker 1: usually called a nonpracticing entity, and that means that this
Speaker 1: is a company, uh that does not have any intent
Speaker 1: on acting upon a patent other than to sue the
Speaker 1: pants off anyone who infringes on it. So they have
Speaker 1: no plans on actually making anything, just the plan on
Speaker 1: on suing someone who tries to make something similar to it.
Speaker 1: And they may not even have plans to license that
Speaker 1: idea out because they could potentially make more money through
Speaker 1: suing a company than they could through licen and sing
Speaker 1: the patent the patented invention. This is why there's an
Speaker 1: amazing article called the Broken Patent System. How we got
Speaker 1: here and how to fix It? By niel I Patel,
Speaker 1: formerly of Engadget Now of this is my next I
Speaker 1: highly recommend you read this article. It is a long article,
Speaker 1: but it's it's very comprehensive and Kneeli makes a great
Speaker 1: case for He actually says, you know, the patent system
Speaker 1: isn't broken. We're the ones who just kind of are
Speaker 1: broken because we're not using it the way it was
Speaker 1: designed to be used. People are gaming the system, and
Speaker 1: that uh that really, you know, you have to ask
Speaker 1: the right questions and see how things are being used
Speaker 1: in order to understand why we are where we're at.
Speaker 1: Kneeli suggests that perhaps one thing we could look at
Speaker 1: is maybe we do breakout software patents so they're a
Speaker 1: little different from the traditional patents in that software patents
Speaker 1: might last uh there there time span might be shorter
Speaker 1: for a software patent, like you couldn't sit on it
Speaker 1: as long as you would a patent for and and
Speaker 1: a physical invention. And because the nature of software changes
Speaker 1: so rapidly that by the time a patent expires, and
Speaker 1: that idea becomes essentially free for anyone to use, uh
Speaker 1: to implement in their own inventions. Once you reach that
Speaker 1: point while software has evolved so far that it's almost
Speaker 1: obsolete anyway. So that's one thing that Kneeli suggests, But
Speaker 1: he also suggests looking at a way so that people
Speaker 1: who use patents to sue other companies can only get
Speaker 1: a limited amount of money and damages, you know, So
Speaker 1: putting limits on how much money you can get through
Speaker 1: suing someone for a patent, and that, in Nili's argument,
Speaker 1: would mean that companies would have more of an incentive
Speaker 1: to license that invention than they would to sit on
Speaker 1: the patents and just sue people. And that's what we want.
Speaker 1: We want people to be able to license things. You know.
Speaker 1: We don't want to get rid of patents because it
Speaker 1: does protect people, um so that they can profit from
Speaker 1: their work. What we do want to do is make
Speaker 1: sure that we create incentives so that people will license
Speaker 1: those ideas, so that we actually get to see them
Speaker 1: and put into place and we get to benefit from
Speaker 1: those ideas instead of using those ideas just as a
Speaker 1: weapon to beat other companies over the head. Because then
Speaker 1: if even if the idea is brilliant, no one gets
Speaker 1: to benefit from it, because no one can make anything
Speaker 1: that incorporates that idea. So I think neelis really nailed it.
Speaker 1: I mean, it was a it's a great article. And
Speaker 1: uh he also brings up something else that's really interesting. Um,
Speaker 1: and I'm dropping this on Chris without him knowing, so uh,
Speaker 1: I apologize ahead of time. But do you are you
Speaker 1: aware of of Jefferson's past with the patent Office? Yes? Oh, okay, excellent, excellent,
Speaker 1: So we can have a conversation about this as well.
Speaker 1: You may not be aware, all right. Thomas Jefferson had
Speaker 1: some pretty strong ideas about patents. The patent system predates
Speaker 1: the founding of the United States. There was a patent
Speaker 1: system in place in the UK, right right, Well, it's
Speaker 1: like I guess I should say, right well, that there's
Speaker 1: some protection written into the Constitution. And of course Jefferson
Speaker 1: himself was an inventor, so he, you know, sort of
Speaker 1: sympathizes with with people who are creating things. So here's
Speaker 1: something that Jefferson said about the idea of patents. If
Speaker 1: nature has made any one thing less susceptible than all
Speaker 1: others of exclusive property, it is the action of the
Speaker 1: thinking power called an idea, which an individual may exclusively
Speaker 1: possess as long as he keeps it to himself, but
Speaker 1: the moment it is divulged, it forces itself into the
Speaker 1: possession of everyone, and the receiver cannot dispossit s himself
Speaker 1: of it. It's peculiar character, too, is that no one
Speaker 1: possesses the less because every other possesses the whole of it.
Speaker 1: He who receives an idea from me receives instruction himself
Speaker 1: without lessening mind, as he who lights his taper and
Speaker 1: mind receives light without darkening me. So what he's saying
Speaker 1: is that if you keep an idea to yourself, that's
Speaker 1: the only way to really protect it, because once you
Speaker 1: tell your idea to someone else, it's out there in
Speaker 1: the open. Jefferson was essentially saying information wants to be free,
Speaker 1: which is what we argued today too, that information wants
Speaker 1: to be free, and that it wants to be available,
Speaker 1: not necessarily free of charge. So Jefferson's idea about patents
Speaker 1: was that they might stifle innovation, that it would keep
Speaker 1: people from actually putting to use these devices. However, he
Speaker 1: became the Secretary of State and was therefore part of
Speaker 1: a a three man board that created the First Patent Act,
Speaker 1: and he eventually it came round to the idea that
Speaker 1: patents are actually very helpful. Now, in Jefferson's Patent Act,
Speaker 1: he had, uh, he had set up some of the
Speaker 1: criteria that we use today and some of it we
Speaker 1: don't use to the extent that Jefferson saw. So he
Speaker 1: he had said that the invention must prove to be useful. Uh,
Speaker 1: it wouldn't. You wouldn't grant a patent to someone who
Speaker 1: had just come up with another use for something that
Speaker 1: already existed. So let's say I invent a tool that
Speaker 1: allows me to I don't know, climb mountains faster and safer.
Speaker 1: And then Chris takes that tool and he realizes, hey,
Speaker 1: this tool is great as a penguin pacifier, and so
Speaker 1: he's using it in a totally different way than I was. Well,
Speaker 1: by Jefferson's measurement, his penguin pacification system would not would
Speaker 1: not uh be legitimate for a patent because it was
Speaker 1: just a different application of something that I had already made. Uh,
Speaker 1: that's not exactly the way it's done. Now. That was
Speaker 1: one of the ideas that kind of got shifted around
Speaker 1: a little bit. And then it would you also would
Speaker 1: not give an invention a patent if the invention was
Speaker 1: just a different version of something that came before but
Speaker 1: was made with different materials. So if I made my
Speaker 1: mountain climbing apparatus out of um would And then Chris
Speaker 1: decided to make his own mountain climbing apparas that's identical
Speaker 1: to mine, except it's made out of metal. That would
Speaker 1: not receive a patent either under Jefferson's rules, because again
Speaker 1: it's the same thing, it's just made out of different stuff.
Speaker 1: And he didn't like the idea of frivolous patents anything
Speaker 1: that was the obvious or something that couldn't really be used.
Speaker 1: He didn't like any of that, so he made provisions
Speaker 1: to protect the Patent office from issuing patents for stuff
Speaker 1: that just was not useful. And uh, he ended up
Speaker 1: his ideas were implemented for a while, but they were
Speaker 1: revised in the eighteen hundreds, so and the revisions from
Speaker 1: the eighteen hundreds or pretty much what we use now.
Speaker 1: And uh, that's also part of why it's complicated when
Speaker 1: you talk about software, because of course, back in the
Speaker 1: eighteen hundred, software was pretty limited. I think Candy might
Speaker 1: have had something in um no. So yeah, you didn't
Speaker 1: have software back then, So trying to apply software the
Speaker 1: ideas of behind software to the patent office and the
Speaker 1: actual patent system is a little tricky. We've made some
Speaker 1: tweaks here and there, but it's still not a perfect fit.
Speaker 1: And part of that is that there's an argument about
Speaker 1: software should not be eligible for patents because it's essentially math,
Speaker 1: and math is something that's not patentable. So if you
Speaker 1: were to try and patent software, you can't use the
Speaker 1: word algorithm because algorithms are not patentable. Yeah, so you
Speaker 1: have to actually dance around that. You can't, you know,
Speaker 1: instead of calling it, uh uh an algorithm, you'd call
Speaker 1: it something else, like a system, you know, a system,
Speaker 1: and method is what you would call it as opposed
Speaker 1: to an algorithm. Uh. And that's where it really does
Speaker 1: get tricky because arguably you'd say, well, if it's basically
Speaker 1: just math, then how do you call it non obvious?
Speaker 1: Because you know, you just manipulate the math until it
Speaker 1: does what you needed to do. Of Course, other people
Speaker 1: could argue, well, any invention if you if you were
Speaker 1: to take a software application and create a physical object
Speaker 1: that does that same process, whatever that process might be
Speaker 1: then you would argue that that invention could be patentable,
Speaker 1: that physical thing you could get a patent for that,
Speaker 1: why can't you get a patent for the digital version
Speaker 1: of that idea? And so these are questions that still
Speaker 1: get brought up in legal cases all the time. It's
Speaker 1: generally accepted that software, if presented properly, is patentable UM.
Speaker 1: But that's also where we're starting to see these issues
Speaker 1: come between these major companies where there's so many software
Speaker 1: patents that have been issued that you know, that's why
Speaker 1: we're seeing like a company A, Sho's company B, Company
Speaker 1: B counter SEUs company A, and then they come to
Speaker 1: an agreement. It's a huge mess, and you know, it
Speaker 1: may be that we eventually catch up and and and
Speaker 1: fix some of these problems. Part of the issue also
Speaker 1: is that software patents are really complex things, and it's
Speaker 1: I can't imagine what it's like being a person working
Speaker 1: in the patent office and having to review software patents um.
Speaker 1: And some some would argue that software patents are just
Speaker 1: it's it's a technology that's more sophisticated than the general
Speaker 1: level of sophistication of the patent office, and that the
Speaker 1: patent office will constantly be trying to play catch up
Speaker 1: and never catch up to actually the the state of
Speaker 1: the art for software because technological innovation is happening so rapidly.
Speaker 1: So there are definitely some some some big barriers that
Speaker 1: we're going to have to get over in order to
Speaker 1: really address patent wars and make it a system that
Speaker 1: uh that doesn't harm innovation, it doesn't hurt the end consumer. Um.
Speaker 1: I think we're we're kind of looking at the those possibilities.
Speaker 1: We're seeing some of that today, but it's going to
Speaker 1: take some years before we The government does not move quickly. No,
Speaker 1: and these these issues are to some degree pretty complex
Speaker 1: surely the concepts behind them, So you can't just throw
Speaker 1: it out the door. I mean if you did, then
Speaker 1: no one's ideas would be protected. And why would anyone
Speaker 1: bother to try and innovate if they knew that immediately
Speaker 1: they that they're hard work would be uh co opted
Speaker 1: by someone else and they wouldn't see it, dine. So
Speaker 1: you want to have that patent system in place because
Speaker 1: you want you want people to come up with ideas.
Speaker 1: I'm looking at you, would it yep? Oh? I ought
Speaker 1: to let me tell you, I AcBe has tons of patents,
Speaker 1: especially for roadrunner captures uh materials, although they're not proven
Speaker 1: to be useful, so it's kind of questionable why they
Speaker 1: got the pats in the first place, not for use
Speaker 1: by coyotes. There you go, Well, do you have anything
Speaker 1: else to add before we wrap up? All right? So
Speaker 1: that concludes our episode on the patent wars. I hope
Speaker 1: you guys enjoyed it. That was an interesting conversation. If
Speaker 1: you guys have any topics you would like us to tackle,
Speaker 1: you can let us know on Facebook or Twitter or
Speaker 1: handle at both of those is text stuff h s W.
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Speaker 1: is text stuff at how Stuff Works dot com and
Speaker 1: Chris and I will talk to you again really soon.
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