November 12, 2008
It’s surely a sign of– and an impediment to– the growth of “the new economy” that the intellectual property (IP) regime in the U.S. has become a mess. Perhaps it should come as no surprise that our friends at Halliburton have surfaced at the center of this confusion…
Patents, copyrights, trademarks, and the like have, from the birth of commerce-as-we-know-it, underpinned commercial innovation and economic growth. Indeed, while “copyrights” were originally just that– rights to copy– and patents were royally-granted rights to produce, by the time of the Enlightenment these instruments of control had become inducements:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
- Article I, Section 8, Clause 8 of the United States Constitution
But in recent years IP has morphed again: it’s been promoted from “enabler” to main event… and has again become an instrument of control. Companies that used to benefit from copyrights for 28 years before the works in question passed into the public domain (a period meant to map onto the creator’s/author’s likely life span) have lobbied to have that period extended; it’s currently at 75 years, and there’s pressure to extend further. Similarly, companies that used to pursue patents simply to protect innovations critical to their businesses now pursue patents– and lots of them– as assets in their own right… and what was meant to be an encouragement to creativity and innovation is at risk of becoming an impediment.
One symptom of this shift is the extraordinary breadth of filings. People have always tried to patent odd contraptions (long-time readers readers will recall missives on this subject); but lately, companies are also patenting seeds, gene sequences, even processes.
As a result, a new kind of “business” has emerged– patent trolling– in which companies file (or more often, buy) patents with the sole intent of suing or otherwise shaking down folks they claim are violating them.
In a sign that the situation has passed from baroque to rococo (or as cultural critics might say, has “jumped the shark”), Halliburton (yes, that Halliburton) has filed a patent for “Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party.” It is, as the folks at Techdirt observe,
…an attempt to patent the process of patent trolling. The application covers, quite explicitly, having a company (we’ll say Company A) that does not invent something, find a company (Company B) that did invent something, but chose to use trade secret protection[*], rather than patents. Then, the Company A files a patent covering Company B’s technology, and then use the issued patent to get money out of Company B.
* Patent filings are public; if granted, the patent gives the holder the right to seeks damages from anyone who copies it, but that copying can– and often does– occur. So a company that cares to keep a new invention completely confidential will often simply keep it a secret.
It’s scurrilous– and ridiculous… and happily, though an astounding number of ridiculous patents have been granted in the last several years, virtually certainly doomed. In a recent case (“In re: Bilski” pdf download), the Court of Appeals for the Federal Circuit (“the patent court”) severely– and in your correspondent’s view, appropriately– limited software and business patents.
Still, Halliburton’s hubris is a reminder that, if the U.S. is to retain its momentum as an engine of innovation, it must reform its IP law/practices and make copyrights and patents the public good they were meant by the Framers to be.
President Obama’s agenda of inherited horrors is already painfully long. Still, here’s hoping that he can find a spot on it for IP.