Software patents, IP Seizure and the new Middle Ages (Software Patents part 1)

Imagine living in an age where the development of technology is so slow that you could wake up after a century-long sleep and find nothing significantly changed. This is conceivable in one of two eras: Earth during the Middle Ages, or Earth (and her colonies) in the era of Pat Hayden Jones, my story arc. It may sound inconceivable given today’s breakneck pace of innovation, but there are factors that may bring about the stagnation of technological change. We’re beginning to see these factors now, and one of them I call IP Seizure. This refers to Intellectual Property, which is any idea, concept or design which can be protected by law via the patent system, and seizure, being the halting of those processes which produce or protect IP.

By IP Seizure, I refer to two concepts. The first is a metaphorical — like when an organism has a seizure due to chemical imbalances. Imbalances in the patent system could bring innovation to a point where progress is blocked by senselessly broad ownership of designs which are in fact, if not law, ‘obvious.’ That I believe could be followed by the second concept, which is more concrete: seizure of IP by an entity — either as an attempt to break the deadlock of the patent process, or to corner the market in a technological area. These events are part of the timeline of the Pat Hayden Jones universe, in which the reader encounters a global, and eventually interstellar, government for humanity.

Most of us are exposed to patents of intellectual property through the media’s coverage of the tech giants’ battles. Apple v. Samsung, Apple v. Google, and Oracle v. Google have all been covered recently. With a number of products, different companies are racing towards a convergent evolution of product function. This is inevitable as developers hone in on the most efficient way to interact with our devices. After all, there is only one best way for some things to operate. Think of a doorknob: could you imagine if one company held the patent to doorknobs? Yet these are the kinds of patents we see awarded for smartphone interfaces (slide to unlock for example).

Patents thus can be barriers to progress, as no two companies can have the same function, no matter how obvious, if one owns a patent for it. Patents are intended to foster innovation by rewarding investment in innovation—for the seven years a company holds a patent, it benefits by being the only entity to profit from it. For some tasks that costs billions to develop, such as development of a new drug, that makes a lot of sense. For an idea a couple coders cook up in an afternoon, or even in a week or month, should we be applying the same standards? That’s what often happens with some of the IP patents that are being brought in our courts. I look askance at some patents for oblong control surfaces with a dimple. Does that approach even remotely the investment made for a new heart drug? I am not an expert in design but this does not pass my common sense test. As a twenty-year veteran of software development, I can speak more confidently about software patents. The process of awarding software patents is out of control. (More on this in Part 2).

The patent system does need reform. Even Apple, which benefits hugely (and litigates hugely) on the basis of software patents, thinks this is true (for example, see here). The big stakeholders, however, only want to go so far. They want to buttress the system, not demolish it. Those companies which spent billions to buy patent portfolios will fight against any invalidation of their patents. For example, Google bought Motorola for $12.5 billion, valuing the patent portfolio at $3.5 billion. That’s no chump change. So you can imagine that stakeholders will fight for status quo, as their business models depend on it. Lots of little fish feed on this activity as well. In 2012, IBM received over 6,400 patents; Samsung, over 5,000. Canon, Microsoft, Matsushita, Sony all are in the multi-thousands per year. Just imagine the number of patent attorneys and clerks that are working on all these patents—each application takes hundreds of hours to prepare (FWIW, I’ve prepared the technical documents for four US Software patents, so I have some familiarity with the process). Software companies sell document and IP patent management software to organize the efforts of law firms and the corporate attorneys who pursue the patent battle. It is an industry, and it is hard to kill an industry. I expect the patent system to struggle onward, with real reform hobbled by stakeholders and the difficulty of coordinating reform with the patent systems in other countries.

Global change, in our fractured state, requires levels of effort and coordination for which humans have not shown aptitude. Our ice caps are melting, we are facing catastrophe on a global scale, yet we can’t even get a protocol for worldwide energy reform accepted by all the major players. You think we can tackle patent reform?

So that gets us to one of the premises on which Pat Hayden Jones’s universe is built. There is no global peace in the 21st century. This is a timeline of conflict and climate disasters, followed late in the century by an accord which stabilizes civilization under the three big players: the Chinese Hegemony, The Caliphate, and the European Compact. These are bureaucratic organizations, and they seek to limit change in order to manage their vast territories, conserve resources, and provide stable services. The days of freewheeling innovation are ended by the Culture and Technology Stability Act. Under this regime, no technological innovation is allowed outside of rigidly controlled guidelines.

Interestingly enough, this control of development paved the way for expansion to the stares. A space-going civilization must face the problem of time dilation (travel is ‘quicker’ for the traveler than everyone else). One way to ensure the gizmos you send to that far-off star cluster are still valid when they get there is by controlling the pace of innovation. The civilization of PHJ discovers space travel and finds itself with a regime which ensures that citizens separated by distance, by time, can trade and travel with less disruption than we do today flying between continents. “Imagine,” they’ll say, “in the 21st century, they had to take these ungainly electric adapters with them, just to visit another country!” Stability is bought at the price of stagnation, and this forms one of the foundational conflicts of the story arc.

Part 2.

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About H.W. MacNaughton

Technologist and communicator. Into technology, jazz, Formula One, sci-fi and any good writing about real stuff.
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