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An invention--you know--for kids!

How the US PTO is misleading our kids about the nature and benefits of patents.

A co-worker sent me a link to the kids pages at the US Patent and Trademark Office. Part of me is delighted that our government is trying to make itself more accessible to children. Indeed, next month I intend to take advantage of that very accessibility when our family visits Washington DC to see the three co-equal branches of our federal government and the various departments they operate. If we are lucky, we might even meet one or more of our elected representatives in person!

But part of me is mortified by the levels of propaganda filling pages that purport to be educational and the thought that millions of children may be exposed to such propaganda without thought or review by tech-savvy parents.

You Know--For Kids!

The problem starts with the "answer" to the first question, "What are patents, trademarks, copyrights, and trade secrets?" The answer given is:

Patents, trademarks, copyrights, and trade secrets are sometimes referred to as "intellectual property"-referring to products that come from the creative mind. Intellectual property is imagination made real. It is an asset just like your home, your car, or your bank account. Just like other kinds of property, intellectual property needs to be protected from theft and misuse.

Which is complete rubbish.

Even the Wikipedia, which attempts to define Intellectual Property is careful to note that "The term implies that intellectual works are analogous to physical property and is consequently a matter of some controversy" and "[the] term 'intellectual property' denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself." A rose is a rose is a rose, but the rights to a rose (or more precisely the rights to name, reproduce, practice, or keep secret a rose) are not a rose. Children should be taught the difference, not taught to ignore the difference!

But even beyond this blatant gloss, an even more insidious proposition is being presented as true: that an intangible asset such as a patent is just like a home or a car, which is plainly false. A person entering their own home in North Carolina does not expect to find themselves guilty of tresspass of somebody else's property in California, but a software developer in North Carolina lives with the daily risk of unknowingly trespassing software patents assigned to inventors clear across the country! A person who buys a car so they can commute from Chapel Hill to Raleigh must share the road with other drivers, but a person who patents a Road Engine can prevent all others from driving anywhere without a license from them!

The FFII site explains the ways in which the patent system has become not only obsolete, but counter-productive, especially in my field of work: software. In one of the truly great technology ironies, Bill Gates created one of the world's largest fortunes by selling software that was originally never patented, because when he started Microsoft it was understood that patents could not be applied to software. In 1991, he famously protested that

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today...A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

It was only later, when Microsoft became one of those giants, that Microsoft became an ardent supporter of software patents. And there is now a growing opinion that Microsoft is hard at work trying to use those patents to freeze, if not monopolize, software innovation--the opposite of what the patent system was supposed to effect!

There is a new book coming out by Professor James Bessen titled Innovation At Risk. I have followed Dr. Bessen's work since meeting him in Washington DC at US Department of Commerce conference a few years ago. He shared with me a fascinating paper showing that there was a stark difference between R&D investment rates of non-software industries and R&D investment rates of the software industry. The hypothesis he tested was simple: if patents encourage innovation, then we should expect that more patents would encourage more innovation. And we would measure such encouragement not by the number of patents issued (which is a proxy for innovation achieved), but by the total amount of R&D invested (which is innovation attempted/encouraged). Bessen's research found that there was a steady and parallel growth of R&D investment and patents in non-software industries over a period of time, showing that the hypothesis was not falsified. Yet there was a statistically significant negative growth of R&D investment compared to an explosive growth of software patents, falsifying the hypothesis and showing that software patents act as a substitute for R&D investment (thus reversing the logic of the patent system)! Bessen's numbers confirm what I and many of my colleagues have long believed: that software patents are a menace to innovation and a threat to the software industry. I eagerly anticipate his forthcoming book, although I am not sure how ready our Congress is to discover that some of their most generous constituents are on the wrong side of the public's interest.

So what do we do when the government tries to promote policies to our children that are contrary to science and detrimental to their own economic future? I don't know about you, but I'm going to do three things:

  1. I'm going to write to my representatives who have responsibility for overseeing the Department of Commerce, and I'm going to let them know that there are serious problems with the way the US Patent and Trademark Office (US PTO) is presenting information to children.
  2. I'm going to try to make sure that my daughter has a chance to learn where patents actually come from (US Constitution, Article I, Clause 8), some historical background as to how the commerce clause came to be, and some understanding of the difference between tangible, observable things and the rights that govern those tangible, observable things.
  3. I'm going to put Unlocking The Sky on her reading list. This well-researched and well-written book explains in vivid detail how the Wright Brothers attempted to monopolize the aviation industry (by patenting nothing less than "Controlled Flight") and then attempted to coerce the Smithsonian into destroying (or at least covering up) evidence that prior art to their invention did, in fact, exist. The story is absolutely fascinating, and demonstrates how disasterous it can be to blindly assume that patents are the best or even a helpful mechanism for technical innovation.

I'll know I've done my job when she can read what on the US PTO website and either (1) tell me what's bogus about it, or (2) tell me it's OK, and I agree. If you would like to join my effort, please leave a comment and I'll reference it in my letters to Congress.