Monday, February 16, 2009

Of boat rockers and mattresses

Sam Martin wrote on CNET:

I’m no patent expert, but it’s clear after a little research that patent laws were put into place for two reasons: 1) they want to encourage secretive inventors to stop stashing their cool ideas under a mattress somewhere and make them public and 2) they want to rock the boat.

Apple has never been accused of keeping new ideas under wraps, but by securing their new patent for “multifunction” touch technology like pinch, rotation, and swipe, they have certainly rocked the boat.

We won’t know how or if the boat will be righted until a few million dollars are spent on lawsuits, but those in the mobile and consumer electronics industry seem to be either ignoring the issue (using the lawsuit reasoning stated above) or they have the knee jerk reaction that Apple is ruining it for everyone – that the company is reverting to Pre-Open-Source, Big-Meany Corporate status.

And yet, isn’t Apple doing us a favor by rocking the boat? The reason behind the existence of patents is sound – to spur innovation and excite competition, the argument being that if there was no payoff for new products, services, or technologies there would be less incentive to push for change and improvement. Instead of ignoring the issue or getting angry about it, companies ought to be putting their energy and resources into coming up with something new. If Apple owns “touch,” what’s next?

People who study basic patent law are apt to run across the text:

We have among us men of great genius, apt to invent and discover ingenious devices... if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor's honor away, more men would then apply their genius, would discover, and would build devices of great utility and benefit to our Commonwealth. Venetian Republic Patent Statute (1474), reprinted in PRINCIPLES OF PATENT LAW 10-11 (Donald S. Chisum et al. eds., 2d ed. 2001).

The problem is not inventors stashing ideas in mattresses but inventors, on disclosing ideas, getting ripped off.
Inventors want to rock the boat, with or without the patent system. Even WITH the patent system, outsiders don't always listen to boat rockers. Look at the story of Chester Carlson.

**In one variant (John F. Duffy, 71 U Chicago LR 439)-->

Seeking a better way to copy images, Chester Carlson, the eventual inventor of the xerographic process, decided to investigate electrostatic methods of copying because he knew that “a lot of big companies were deeply in-volved in research using chemical or photographic processes, and (in the inventor's words)--‘Who was I to compete against Eastman Kodak.”’ [FN97] Although today xerography is seen as a great invention of the twentieth century, that was not true even in 1959, nearly two decades after Carlson had received his first patent. Then, as Xerox was introducing its first plain-paper copier, the conventional wisdom was that the new machine would “find plenty of competition” in the “crowded field” of office copying, and that Xerox's business strategy was a “calculated risk” and a “gamble.” [FN98] (p. 464) That some such gambles pay off handsomely does nothing to demonstrate that rents are preserved, for the many less famous failures must be considered. [FN99] Any claim that competitive rivalry poses a diminished threat at some stage of technological development is speculation, supported by neither intuition nor empirical proof.

**Mark Lemley wrote in 58 Stanford LR 601:

Chester Carlson, a patent attorney, invented xerography in 1938. Being a patent attorney, he immediately patented his invention and proceeded to patent a series of improvements. Fascinating Facts About the Invention of Xerography by Chester Carlson in 1938, http:// (last visited Oct. 28, 2005). While one could dispute whether xerography is in fact an enabling technology in the sense I mean, it did open up a variety of fields and so is probably worth inclusion.
Notably, the patents in xerography were all held by Xerox, which effectively controlled the market for xerography for decades. Xerography is one of a very few inventions that was unambiguously made by the patent owner; no one else came close to developing a similar technology for well over a decade. Id. And even Xerox, Carlson's company, did not make a commercially successful copier until 1959, twenty-one years after his invention and the year his basic patent expired.

[IPBiz note: this is the paper that asserts Gary Boone invented the IC.]


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