Yeah, I know. Everyone’s writing about it, so this isn’t going to get too original. But I’d like to write some of this down before the Black Monday of patent hogs happens, and the system finally gets the review and revolution it needs.
According to The Register, patent 4,734,690, filed by Tektronix in 1987, covers
the display in 2D of a 3D image. Which should cover just about … every FPS since Wolfenstein! McKool Smith, a US legal firm, is now suing numerous companies for violation of this patent. Some of the giants mentioned include Electronic Arts (Sim series), Activision (Doom series), Take Two (Grand Theft Auto series), Ubisoft (Myst, Rainbow Six series), Atari (Civilization series), Vivendi Universal (Half-Life series), Sega (Sonic the hedgehog series), and Lucasarts (Star Wars series).
The case mentioned is in no way unique. There are numerous examples of what seems to be a trend to make money not by the good old-fashion way of actually producing something, but rather by suing others for making something similar to what you have made, maybe decades before (all links go to news articles about lawsuits for patent infringement). Big companies are sued because the legal system of many countries calculate fines according to the size of companies, and smaller companies are sued because many of them will rather go for a settlement than risking bankruptcy in case of a loss in court.
So what is the basis of the problem? Something which popped up while writing this, was that each and every patent is like a law, the main difference being that fines are paid to the patent holder, not the state. I am not familiar with the legal texts of patents, but I would believe that most of them correspond to at least an A4 page of text. With the current amount of patents, that amounts to millions of pages! How are companies supposed to be able to keep à jour with that? The result is that most companies produce and innovate without checking for pre-existing patents for their products, and just hope that they are not interfering with existing patents. In other words, the current patent system is a time-bomb in the face of any company.
So what can be done? Eliminating patents altogether would be extremely unfair towards the innovators, as good ideas would be copied as soon as they are made public. The mandate of patent offices could be extended to check project descriptions and the like for any possible infringements, but errors in this process could create legal chaos. Who would be to blame? Also, it would probably be too expensive to be effectively done by public offices. Stricter patent reviews could be used, but will probably take enormous amounts of time because of the complexity of the legal aspects. How about passing laws making sure some fixed part of the settlement / fine sums goes to the state? Sure, there would be less suing for patent infringement, but this could encourage companies to take even lighter on patent infringement.
There are two measures which, in combination, I believe could solve at least part of the problem. They are based on the assumption that there are two ways to know whether project X will infringe on a patent: Intricate knowledge of any patents in the same and bordering business areas, and actually seeing a product which is very similar to the expected result of the project. The first is problematic because of the enormous amount of work involved to get a legal approval before the project is finished. The resources are always limited, and projects normally evolve from their initial plan. The second I believe to be much easier in the general case: Take a look at finished products, and see if they already share key features with the expected result of the project. Based on this, I propose that either of the following must hold to make company A win a patent infringement case against company B:
- Company A must prove that, at the time company B’s product was in the stores, it was planning to produce, already producing, or in the process of selling a product utilizing the patent.
- It must be proven that company B somehow knew, or for some obvious reasons, should have known, about the patent.
In other words, unless company A was in the process of making any product based on a patent, it shouldn’t be able to stop other companies from creating such a product. This would make sure that companies cannot buy patents to stifle the production of something revolutionary, thus holding back innovation. Also, if there is no reason to believe that company B knew of the patent, they shouldn’t be punished afterwards.
It should be noted that if company A discovers that company B is infringing on their patent while in the planning, production, or sale period, they should send a “cease and desist” letter to company B, stating the relevant patent number and some kind of indication that planning, production, or sale is in process. If company B chooses to ignore this, it is clear that they have broken point 2 above, and so could be successfully sued.
As a nerd, I also have to suggest a technical solution: RDF, or Resource Description Framework. In short, it can be used to enable computer reasoning about complex, human-related themes. Basically, it defines relationships between generally atomic parts of data, and also about the relationships themselves. The point is that this could possibly be used to formalize and query patents. You could specify key concepts about something you are planning to produce, and the system would (by means of logical inference) return any infringing patents, explaining which parts of the patents are relevant. This is much more than a plaintext search (à la Google) can achieve, because it doesn’t just work in the words themselves, but their meaning.