Intellectual Copyright: A Threat to Intellectual Discourse and Creativity

Earlier this week, Timothy Noah posted this bit of dark humor in Slate:

Looking back from the 22nd century, future historians will marvel at the current era’s obsession with extending intellectual property rights well past any reasonable limit. Nowhere is this more apparent than in the United States Patent and Trademark Office’s determination to grant a patent to even the most absurd claims that cross its desk. Four years ago a patent attorney in Minnesota named Peter Olson demonstrated this by submitting the following patent in the name of his five year-old son, Steven. The patent was granted. Read it and weep.

More Doltish Patents

This example describes one example of governmental doltishness, but it is only one of many instances of ridiculous decisions that the U. S. Patent Office has made. While its incompetence greatly increases the cost of obtaining a patent, the Office still manages to continue issuing many patents of extremely questionable worth. Since there is a legal presumption that a patent is legitimate unless proven otherwise, this is a substantial legal advantage to the patent holder, who may use it for blackmail, or other purposes. Moreover, while some bad patents may be turned down, the obvious strategy is simply to file as many bad patents as possible in the hope that a few will be able to successfully slide through. Here are just a few of some of the ideas for which The U. S. Patent Office has awarded patents in recent years:

U.S. Patent 6,080,436: toasting bread.

U.S. Patent 6,004,596: the peanut butter and jelly sandwich.

U.S. Patent 5,616,089: a putting method in which the golfer
controls the speed of the putt and the direction of the putt
primarily with the golfer’s dominant throwing hand, yet uses the
golfer’s nondominant hand to maintain the blade of the putter
stable.”

U.S. Patent 6,571,402: The present invention takes a
transmission of energy, and instead of sending it through normal
time and space, it pokes a small hole into another dimension,
thus, sending the energy through a place which allows
transmission of energy to exceed the speed of light. (The mirror
image of patenting stuff already in use: patent stuff that can’t
possibly work).

Intellectual Monopoly: A Threat to Innovation and Intellectual Discourse

In the field of patents and copyright, the tendency to equate physical property with intellectual property has led to an expansion of intellectual copyright. This proliferation has reached the point where many are claiming that ideas are becoming less the domain of freely determined personal creativity, and instead portrayed as objects that can be patented by individuals or corporations with the same legal sanctity as property. An often-cited analogy is the illusion that if one buys a potato, one has also purchased sole ownership of the idea of a potato. From that point on, according to this line of thinking, no one else any longer has a right to use the “idea” of a potato for any form of creativity, development or innovation. Intellectual property then becomes intellectual monopoly, eventually smothering innovation and intellectual discourse like a life-threatening form of cancer. In a study of the consequences of intellectual monopoly, Boldrin and Levine have claimed:Nowadays, this cancer is attacking the most vital centers of our economy: metastasis is near and so it is time to face the intellectual monopoly threat squarely, and to take action. Intellectual monopoly apologists like to portray intellectual property as a cure, a powerful and beneficial medicine alleviating the innovative impotence of competitive markets. If intellectual property is the Viagra of innovation, then it has been prescribed on the basis of the wrong diagnosis to a patient who is not impotent. It may occasionally provide an initial spurt of innovational enthusiasm. Unfortunately, this subsides rather rapidly and is replaced by a rapacious desire to obtain economic satisfaction through the exclusion of as many people as possible from fruitful
intellectual intercourse….

[A] long time, the few individuals and firms that profited from trade barriers argued that these increased the wealth of the nation,
defended homeland companies and jobs. It took a while to realize this was not true, and that trade barriers were nothing more than
rent-seeking devices, favoring a minority and dramatically hurting the overall economy and everyone else, beginning with low income consumers. The same is now true of patents and copyright. A realistic view of intellectual monopoly is that it is a disease rather than a cure. It arises not from a principled effort to increase innovation, but from an evil combination of medieval institutions – guilds, royal licenses, trade restrictions – and the rent seeking behavior of would be monopolists seeking to fatten their purse at the expense of public prosperity.

Patently Absurd

Finally, in another example of irrational kind of thinking promoted by the present day corporate obsession with creating and maintaining their intellectual monopolies, Gary L. Reback described an experience that he had while working with Sun Microsystems:

Too many patents are just as bad for society as too few. There are those who view the patent system as the seedbed of capitalism–the place where ideas and new technologies are nurtured. This is a romantic myth. In reality, patents are enormously powerful competitive weapons that are proliferating dangerously, and the U.S. Patent and Trademark Office (USPTO) has all the trappings of a revenue-driven, institutionalized arms merchant.

My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems–then a small company–was accused by IBM of patent infringement.

IBM claimed that seven patents were infringed, the most prominent of which was IBM’s notorious “fat lines” patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process.

After IBM’s presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues–all of whom had both engineering and law degrees–took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM’s claims. We used phrases like: “You must be kidding,” and “You ought to be ashamed.” But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun’s technology infringed even that one.