The US Patent System Is Out of Control!

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it...He who receives an idea from me, receives instructions himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should be spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature...Inventions then cannot, in nature, be a subject of property. --Thomas Jefferson
It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).
It certainly appears from this Supreme Court opinion, written over a century ago, that the US patent office was already out of control. Sad to say, things have only gotten worse. Thanks largely to the League for Programming Freedom (yes, I'm a member), software patents have gotten at least some of the notoriety they deserve. But the more patents I read, the more I come to the conclusion that things are just as bad in the more traditional hardware areas.

It seems that every day somebody finds a patent that just makes everyone's jaws drop open in utter astonishment. Here's one I just discovered: US patent  5,443,036  covers the use of a laser pointer in playing with a cat. Check it out; this is not a joke, unless you consider (as I do) the entire US patent system to be one very sick joke.

To their credit, in 1994 the Patent Office put out a call for comments on "obviousness" standards for patents, asking if perhaps they have been inappropriately lowered. (Is the Pope Polish? Are your taxes too high? Does a bear...well, you know.) Here are the comments I filed in response. Naturally, they were ignored.

Recently a  Slashdot reader hit on a brilliant analogy that ties it all together for me: patents, he said, are merely a form of industrial pollution. After all, both pollution and patents are economic externalities that can enrich individuals or companies at the expense of society as a whole.  And both are often defended as economic necessities.  At one time, society celebrated the belching black clouds of smoke and soot from steam locomotives, power plants and steel mills as signs of progress and economic prosperity, but this changed. I fervently hope that I live to see a similar sea change in public attitudes toward the patent system.

Some people have said to me, "How can you attack patents? As a Qualcomm stockholder, they've made you a lot of money". Yes, but this has come at an unacceptable personal cost. Last summer I was subpoenaed to a grueling and pointless deposition in a patent suit by Bellcore, my former employer, against Fore Systems, a maker of ATM switches. When I was asked my view of the patent system, I responded, "I find it totally loathesome, and it has totally drained the joy out of engineering for me". And I was exaggerating only slightly. Patent angst has significantly reduced my job satisfaction, enough to make me seriously consider giving up the engineering profession. And as someone who knew by age 5 that engineering was his life's calling, quite frankly that's just not something that money can replace.

More good stuff on bad patents

The controversy over the Amazon "1-click" patent has unleashed a tidal wave of pent-up frustration and anger over the Patent Office juggernaut. It's heartening to see excellent articles on the situation appearing in the mainstream media almost every day. One example is The Great Amazon Patent Debate by Steven Levy that appeared in Newsweek.

Lawrence Lessig, a Harvard Law professor, has been writing insightful articles on intellectual property for some time. I highly recommend both his articles and his book, The Code of Cyberspace. Though I certainly don't agree with everything he says (he has a little too much faith in government as a force for good), he's becoming somewhat of a hero of mine -- to the extent that an engineer could ever consider a lawyer to be a hero, that is.

And there are the columns by Dan Gillmor for the San Jose Mercury News. He has been writing extensively about the Amazon situation. Dan's columns, which have also included excellent commentaries on the parallel absurdities happening in copyright law, has posted links to many other articles on the situation. One truly outstanding example is Patently Absurd by James Gleick that appears in the March 12, 2000 edition of the New York Times Magazine. Even the article's illustrations drive the point home; it takes more than a quick glance to tell the satirical "patents" (Procedure for Simultaneously Walking and Chewing Gum) from the real ones (Method of Exercising a Cat and Method of Bra Size Determination By Direct Measurement of the Breast).

Some more thoughts on patents

Letter to Rep Dana Rohrabacher

Letter to Rep Brian Bilbray

Letter to Editor of San Jose Mercury News

I'm under no illusions that a few letters from one citizen can posssibly have an effect in Washington; votes, dollars and appeals to emotion gain much more attention than reasoned argument. But if you're also upset by the sorry state of the US patent system, let your own congressman know in your own words. Sure, you may not get a response either but at least you'll feel a little bit better about it.

Last updated: 11 Mar 2000

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