The Problem with Patents

You will hear a lot of people complain about patents in the maker community. Meanwhile governments and especially big business are constantly telling us that patients are the foundation of our economy and that if we mess with them the economy will collapse and the sky will fall.

I personally think there is a huge problem with patents that needs to be addressed sooner rather than later.

A patent is given by a sovereign state to an inventor to give them exclusive rights to that invention, so they can profit from it. In exchange the inventor must publish a specification for public viewing. To be patentable an invention has to meet certain criteria such as novelty, non-obviousness and usefulness. A patent also needs to be of patentable subject matter. For example discoveries, scientific theories and computer code cannot be patented in most countries (although the latter can be protected by copyright). Generally patents last for 20 years. It is also possible for a patent to be given for an improvement of an already existing patented invention.

Patents were introduced to encourage innovation by protecting the rights of inventors by allowing them to profit by their inventions and allow the public to see the invention and potentially spur further invention and innovation. During the time of the industrial revolution inventing could be an expensive and time consuming endeavour. The industrialists of that time employed child labour and workers often toiled in conditions that sent many of them to an early grave. It isn’t that much of a stretch to say they wouldn’t have a problem with stealing someone’s invention if they could get away with it.

Even in the early days patents were misused. Some monarchs of this time used patents to bestow monopolies on their favourite courtiers. But over the past 400 years patents have been of great assistance in creating the world we live in today. Patents gave inventors the ability to keep inventing and not worry too much about somebody stealing their invention.

Yeah, patents sound great, but there are a few problems that have cropped up in the past 30 years. New information and biological technologies have appeared that the current patents system wasn’t designed to cope with. This means we have started to see discoveries being patented.

In February 2013 in the Federal Court of Australia Myriad Genetics won a court case over the patent of the BRCA1 “breast cancer” gene. In my mind this should not be a patent on two counts. 1. It is a naturally occurring gene and just like anything else in nature (e.g. the Moon) cannot be patented. 2. Really a gene is a piece of code that codes for a particular protein, sounds like a computer algorithm to me and we know how hard it is to make such patents stick. (It can’t be copyrighted either just as if you found a 2 million old rock that just happened to have an amazing science fiction novel chiselled into it (in English!) - it would still be plagiarism if you copied and disseminated your publication with profit in mind.)

This is rather disturbing. All of us are currently breaking patent law just living! Living organisms have cells which divide every division makes a new copy of the BRCA1 gene and any others that are patented. It’s bloody ridiculous.

Okay, I’m very angry, but this is only the start of it. The world has completely changed from when patents were first introduced. I believe the majority of patients are now holding us back. In our interconnected world it is no longer an advantage to lock your inventions up. The open source movement greatly accelerated the development of many hardware and software devices. When the patent dropped from 3D printing many businesses started creating 3D printers. Some of them did not patent or copyright their improvements to 3D printing technology but made them available to the general public. This resulted in an explosion of 3D printing ideas and 3D printers. The companies behind these machines could then use the ideas from the public for their next iteration of 3D printers. Yes, there was a minority of people creating their own printers from scratch, but this didn’t impact the bottom line too much as many of these makers were most prolific sharers of their ideas.

With the sum of human knowledge at our fingertips many ordinary people are becoming interested in what makes their gadgets work. It can be legally dubious to crack open something like an iPhone and play around with its insides. One of the worst things that a maker can hear is the P word, proprietary! Consider this fictitious example, a maker has just created an amazing robot, it just needs one little thingamewhatsit to make it work. It is a pretty basic thing that should only cost 50c. There is no open source gizmo that would do the job, so he has to import thingamewhatsits at $200 a piece.

So he imports the thingamewhatsit and finds out that it doesn’t quite work as expected, but with a couple of tweaks to its software it would work just fine. But the makers of the thingamewhatsit refuse to share the source code and only distribute it as a pre-compiled binary file. So our inventor puts his intervention on the shelf and waits for an open source equivalent that arrives surprisingly quickly. Meanwhile the inventor has been bagging out the makers of the thingamewhatsit on Twitter Facebook and Google Plus.

Some “open source” systems have integral parts that are protected by patents. Most of the time business will overlook the infraction, give permission or charge a fee, but it is theoretically possible they could yank the program or update it so no longer works on your open source system. The much loved Raspberry Pi contains proprietary hardware and software which has caused a number of heated debates on open source forums.

Tools that allow creativity to flow around the globe from brain to brain almost instantly has already changed the way world works. Couple that with, 3D design, 3D printing, hackerspaces and cheap electronics, Ideas can now turn into usable products in unbelievably short periods of time. Often patents are a roadblock to development which could sometimes damage the patent holder as much as it does the end user/developer.

If large patents holding Multinational corporations wish to stay relevant they need to be wiser when new technology starts upsetting their bottom line. With the blurred line between users and developers, corporations need to make their products hackable, provide a datasheet, code and maybe an API.

Western governments also need to be wiser as they are out manoeuvred by the swiftly developing economies in Africa and South America and the rising superpowers of India and China. Many of these countries do not respect patent law and their citizens may even be free to mine the publicly disclosed patents and steal them.

The world has changed and something needs to be done to either change the way patents work or ditch them entirely.