Innovation talk: Between a rock and a hard place
The perversities of the current patent system as applied in the US – which determines how much of the world’s intellectual property is to be protected – was exposed in a recent episode of US radio programme This American Life. It examined a labyrinthine legal case involving a patent for backing up data over the internet – using any system whatsoever. The very idea of backing up data over the internet, no matter how it is implemented, was owned by a company called Oasis, which paid the lion’s share of its litigation revenues to the notorious patent troll firm Intellectual Ventures. It’s a nauseating example of how broken the entire system has become.
A similar lawsuit at the moment is trying to force podcasters to pay a licensing fee for the supposedly patented podcasting technology. It hinges on a ridiculous patent owned by a company, Personal Audio LLC, that used to deliver magazine articles on cassette tapes in the 1990s. I’m not sure what was dumber in that case – the business model, or the patent office for granting such a patent.
These cases reveal a major problem with the patent system: the increasing prevalence of overly broad software patents. It imagines programmers as “inventors”, but these “inventors” are not creating circuit boards and microchips to implement their ideas, nor are they even creating new programming languages.
We don’t say that every songwriter “invents” a new song when they pen a tune; we don’t claim an author “invents” a book every time they publish a new novel. We determine how innovative those songs and books are by judging whether they have “applied” the notes or the words in a fresh way. Their intellectual property is protected by copyright, which has its own problems, but at least the concepts are fairly clear. By allowing software patents, the US Patent Office is conflating the process of invention with the process of innovation, with a distorting impact on the technology industry.
As the rocks and stones of our progress, it pays to be aware of how invention and innovation differ, and how they interact. It’s how our myriad ideas, the pebbles of our eureka moments, the grains of our thoughts, become something much greater. And it’s a difference the patent system needs to be more aware of.