The Language of Kings: The case for Patents in an increasingly media acquiescent world

[Found this on his laptop.  Have nicely edited it so that I can now add co-author, on my list of canine achievements. Enjoy!]

The Economist of 26th July 1851 carried a piece describing the negative effects of patents, one that has been quoted numerous times:

“… the gravity of a Patent inflames cupidity, excites fraud, …begets disputes and quarrels betwixt inventors, provokes endless lawsuits, makes men ruin themselves for the sake of getting the priviledge of a patent, which merely fosters a delusion of greediness.”

I’d have to admit just how fond I am of this beautiful piece of writing. As a canine with frequent poetic tendencies, I think it is incredible and each time I encounter it, whether it is being quoted in a blog, or some other article, it feels almost like prose, tingly and playful, and timeless.

But its not merely because of the vivid graphic picture the writer conjures. Instead, in a commercial world inhabited by trolling and quasi-trolling, courts busied by commercial disputes of all sorts, and where anything vaguely proprietary, from computer software and isolated gene sequences to essential medicines is eligible for some form of monopolistic bulwark; all bonafide efforts we are told, against the evil that is infringement, the saying couldn’t have been more true. Except perhaps not as many folks are currently ruining themselves, as insurers and corporate profits leverage the inevitable bulk of legal costs and royalty payments.

But why should there be any squabbling at all?

Surely, if one’s exclusive right is valid – not anticipated by prior rights, clear enough in that it leaves a fair degree of certainty to the general public over its limits, and generally as good as claimed, then presumably people within the field / specialization should be able to notice it and for fear of being branded a thief, steer clear of it.

Shouldn’t it be the case that “if you don’t step on my foot then, I won’t step on yours”, after which each one of us can continue with our jolly little trades and live happily ever after. Simples?

Unfortunately as has been demonstrated by countless lawsuits involving companies of all forms and sizes, from Google, Apple Inc, Microsoft and eBay to the sole inventor and even open source outfits, the world of Intellectual Property doesn’t function quite that way. And there are many reasons that may explain this. Yet to clearly understand the different dynamics that are often at play, it is probably necessary to down dress the individual players of the system and paint a picture that examines their members in slightly less strenuous detail. In terms which lanky Simon can easily understand.

Firstly, there is the inventor on one end; That valiant enterprising genius, who being a fervent melancholic is to an extent accomplished in the prime art of finding solutions where none previously existed, or where only a few did. Often his zealous impulses, lead him to behave in a manner questionable, even tangential. Most don’t like the complexities associated with procedural rules and are more comfortable amongst other technical sorts. If he didn’t commission a search prior to developing his idea, or copied part of his idea from somewhere else (or someone else) he is unlikely to tell you so, insisting instead that it is “totally new and there is nothing quite like it anywhere else throughout the entire world”, garnishing in some tale on how it was all conceived. Few can claim to clearly comprehend many of his polarized mannerisms, much more so his ingenuity, which is where the first problem lies, because many inventors speak a slightly different ‘language’ and it may take a little more than mere ‘adjustment’ to get to their level.

Abstract ideas, however brilliant are unprotectable. My dog [ouch!] could have told you that.

Yet if not well thought through, and / or properly communicated, and packaged, even the most creative of ideas can amount to nothing. [nicht, zero]

Soon after disclosure, they will very quickly end up in the communal pile of the public domain, free for all to use. But my problem is, although the myth that ideas can be protected somehow keeps rolling along with the centuries, this is not really the root of the matter;

In this boisterous proprietary circus of muscle flexing individuals and undertakings, the inventor’s adviser or professional representative is an active accomplice. He is faced with some tricky balancing business to attend to.

On the one hand, he was crazy enough to read Law or Engineering, or both, and is trained in the delicate and compulsive art of claiming ever so slightly, as broad a monopoly as he can get away with. Inevitably, after a while, it begins to get addictive and he starts to flirt with thoughts that he can claim virtually anything; a bicycle, software, business methods, genes, air, the sun… etc…  all fertile territory for greed to blossom.

In order to perfect his claiming, he is encouraged to be thoroughly rigorous in language, leaving no stone unturned, most perfectly summarized by one Eric Micklethwait, a prominent Patent Agent during his days in late 1940’s post war Britain:

“The answer is to make it as difficult as possible for a potential infringer to get the advantage of the invention without infringing the claim.”

Charged with such an antithetical order, some become tribal in their approach, stretching their skills to break point in a spirit of dare and fervid bravado, commonly ending in a nudge onto the exclusive rights of the guy next door.

After all, he thinks, if at all the Patent is eventually granted, then it is more likely than not that a broad enough claim may assist in maximizing the potential economic benefit derived from the invention to his client (and thereby to his employer), should the invention turn out to be a great success (Indeed the roads to Partnership are many!) Further, once our client does well, then generally, we’ll be in the money and will be able to afford to bankrupt and / or pay away (and silence) the little guy, or anyone who’s mad enough to sue our then affluent master.

On the other hand, against a backdrop of code of conducts, professional ethics and “there’s nothing new under the sun”, the professional representative has to exercise great restraint, even caution, to ensure that he doesn’t accidentally lay claim to a chair or anything that is already known and would make his claim invalid, in the process exposing shoddy drafting (at which point if he is not the boss or chums with the boss, could eventually put his job on the line).

As skilled as he is in harvesting the inventor’s fruitful mind, so versed is he in sniffing out gleaners and  depending on the funds available in the client’s coffers (whether corporate or otherwise), and what or how much of that what has been gleaned, it will be his pleasure to reveal his shrewd colours and whistle to Counsel, a summon to battle.

Somewhere higher up this crooked hierarchy of sharks, on a pedestal with words such as Chief Executive or President inscribed thereon, sits the head honcho. Often a fascinating sometimes burly and pinstriped individual who having accumulated considerable amounts of wealth has settled into a comfortable routine of barking orders, writing cheques, firing imbeciles and making ‘strategic decisions’ that direct his business venture(s). That’s beside the frequent Caribbean holidays, Golf, Royal dinners, Private Jets and the odd Yacht.

They have a passion for flashy cars, the likes of Rolls Royce, or Bentley and tend to carry a Blackberry or an iPhone. Or both. Most of them will revel in the limelight and may nurse many epicurean fetishes.

Their insightful decisions, we are told, are said to be constantly averting the economic disaster of their ventures and at the slightest suggestion of copying, they can be just too willing, without looking too deep into the details, to roast you or the overseas manufacturer of the variant gadget your company is selling, especially if the reasonable licensing terms they offer (which for the record, are anything but reasonable) are not accepted, and so long as on balance, there is a good probability that money could change hands in their company’s favour.

Some have a big mouth, which is more disturbing than the personae because they can’t seem to be able to control their tongue from wandering off into uncharted waters. Yet because they are usually regarded as exemplary figures in society, a good deal of what they spew is guaranteed to be repeated elsewhere: at the office, in the shops and warehouses, in business meetings and in the pub, which in itself would be tolerable if it wasn’t for the fact that sometimes their comments may be watched and heard by millions of viewers, on broadcast television.

Anyhow, on the furthest end of this spectrum stands the Patent Office, where it is alleged that the examiners and their functionaries are mandated to shoot down bad Patents, letting the good ones through.

If you then take a step back and imagine this heady mix of egos, personalities and thought patterns somehow interacting harmoniously together to codify what tomorrow’s world will look like, should it then come as any surprise as to why so few people outside of their little oftenly dysfunctional system understand the role that Patents and Intellectual Property play in society, associating them instead with a tool to prohibit dissemination of new ideas and stifle innovation to the benefit of none other than Patent trolls and greedy fat cats?

Allow me, please to clarify:

Coca Cola – hate them or like them – say their formula is a closely held trade secret. It might then be reasonable to expect that for a company with the resources that Coca Cola has, accessing the recipe must be an impossible task. And if you are to believe popular sentiment, then the ‘executives’ of the “staple constituents” that make up the formula – who themselves are said to be people with little or no chance of ever crossing paths – are sworn to confidentiality, for life.

This means that theoretically, the probability for any single individual to get hold of all the different constituents is negligible. Yet it is interesting to note that there are many recipes of cola … everywhere! They taste like cola and their “flavors” are quite similar to those of Coca Cola. But they are not Coke, and if you concentrate hard enough, says the regular drinkers (or those with advanced culinary discernment skills), the different flavors can be clearly distinguished.

As incredible as that may sound, for a brand that has been around since 1886, many observers and critics agree that Coca Cola has gone some way to show that maybe it is possible after all, to keep a trade secret … secret.

However, when it comes to consumer products, physical articles that can be bought and reverse engineered, the current system of intellectual property protection in Europe and most parts of the world (although appearing more “botched” together by a blindfolded drunk, than carefully thought through by a continuum of both legislators and esteemed judges, the laws of whom have been revised again and again over the years in an attempt to cater for precedent and new technologies) is by a furlong a lot functional than most people would care to admit, and it is to a large extent probably as good as it can possibly get considering (1) the chaos that restructuring the system would cause and (2) the big elephant in the room, the varying ranges of opinion that have to be balanced within the current framework (pray ye I, to try to get the Germans to agree over anything with ze French!).

One way to understand what I’m getting at, and conceive the chain of personalities connected to the IP system may be found in the electronics industry.

If Samsung Electronics publishes a new document – whether a technical publication or a Patent application, disclosing the details of their newest invention in a particularly new field where there is pioneering research. On that same day, hordes of engineers from Sony, LG, Toshiba, Sanyo and numerous other outfits will be alerted by their Business Intelligence news sources. Some of them will immediately leave whatever they were up to on the side and begin dissecting the published document, forwarding bits of it to people in their organization who are specialists in the field; to in-house counsels; Lawyers and Attorneys, to those who will help ascertain infringement and validity, trying to find answers as to how far Samsung has progressed in the industry, and whether they themselves (Sony, LG , etc) could do better.

Some will even go as far as purchasing the article having the technology disclosed in the document embodied in it – if they can get their hands on it, and breaking it apart to take a peek on whats inside. All in all, reverse Engineering at its best.

But isn’t all this somewhat justified?

After all, IP rights are but granted for a limited period (in the UK, Patents get a maximum of 20 years), and as is common in many fast paced industries from the Pharmaceutical industry to the Smartphone market, an inventor usually has a much smaller window to make his money. If someone dares to step on your feet, without asking for permission, maybe they should be punished, or pay for it. I mean, you wouldn’t take it too kindly if lanky Simon barged into your house, uninvited, and began remortgaging it. Or making copies of your wife’s photos?

By the end of the week or two, half a dozen or so companies will have systematically identified specifically what it is that Samsung Electronics has covered in this new technology, whether the patent application is sufficient and valid; whether the subject matter is novel and non-obvious; whether Samsung may have infringed someone else’s technology; and whether they themselves need to respond and tweak their own research to get closer to, or steer clear of Samsung’s work.

Thus, a number of them will probably begin developing their own applications in response to the new Patent application, trying to ascertain whether there are better ways of doing exactly the same thing as the disclosed technology, more efficiently, using fewer resources, but hopefully outside the Patent claims. There will be meetings, brainstorming sessions and information will travel thousands of miles being pieced together. Shortly after, if one or more parties believe their feet have been trodden upon, and it is verified by their advisers that such is the case, the honcho or someone just as high up will giddily do the thumbs up, and there will be litigation. Plenty of it.

Soon enough money will change hands through licensing deals and / or out of court settlements or the case will dross the nostrils of some courts for a number of years, and in the process, a number of people will get richer.

This pattern is repeated in many other industries, and you would be forgiven to think the practice is at the very heart of Capitalism.

But there is another less visible aspect of it, which is often overlooked partly because of the varying ranges of opinion.

Counterfeiting, which [this canine thinks] may stem from replicating high valued goods, and has been estimated to cost billions of pounds in lost revenue every year, part of which ultimately finds its way into organized crime, the drugs trade, human trafficking, terrorism, prostitution and many other unpleasantries.

And if all that won’t make you reconsider, even secretly, inwardly, the merits of the IP system; to shift towards a more pro-IP position; that maybe after all, the stone the builders keep rejecting, is in fact the chief cornerstone. Then I dare you to suggest a better system.

Not a Perfect System, since [you] humans have a tendency to screw up almost everything that is functional. Instead your work is cut out: to [invent] an IP system, or equivalent that would work better and would be just as functional as the current regime, in the process safeguarding jobs, stimulating innovation and fairly distributing wealth. One that won’t be as controversial as the current one is made out to be.

Btw, your solution will have to be more or less universally accepted, most likely by at least some of the members of WTO, Paris Convention and PCT, which … erm … would include my [master’s]  learned friends, Frau Schroeder and Monsieur Lellouche.

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