Cover | Table of Contents | Colophon

Table of Contents

Chapter 1: The Economic and Legal Foundations of Intellectual Property

Content preview·Buy reprint rights for this chapter

When programmers get together to talk, the conversation is likely at some point to turn from .NET frameworks or memory usage patterns to copyrights, patents, or trade secrets. People in the computer field realize that a cluster of legal concerns known as intellectual property (IP) plays a big role in its development. Consider just a few of the headline-making legal issues in technology over the past decade, most of which will be remembered by readers of this book:

• One of the most explosively popular applications in modern times, Napster, was shut down by a copyright infringement lawsuit in 2000. The founders of Napster thought they were safe from copyright infringement charges because the service itself never copied music files. But because its users shared copyrighted music without authorization from the copyright holders, the Supreme Court took down Napster a theory of “contributory copyright infringement.”
• Around the same time, a promising new file-sharing service called Aimster was temporarily shut down on a different IP basis: America Online claimed infringement on its AIM trademark.
• The shutdown of Napster (and Aimster) fostered a sudden interest by the public in new or previously obscure peer-to-peer file-sharing protocols. The changing technical and legal landscape has forced the music recording industry to shift its enforcement efforts to individuals, leading occasionally to lawsuits against six-year-olds and grandmothers, and sparking debates over whether colleges should collaborate in making students obey music industry restrictions on network use.
• The SCO Group, a tiny computer company formerly prominent in the field of Unix, sued the most famous computer company in the world, IBM, in 2005. SCO put forward a cluster of complaints (soon taken up in lawsuits and countersuits involving other companies) covering just about every area of IP: abuse of its UNIX trademark, copyright infringement, and theft of trade secrets. (The trademark is officially on the uppercase name UNIX, but most of the computer field uses the casual spelling “Unix”.)

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Law and Code

Content preview·Buy reprint rights for this chapter

Imagine you are a software developer embarking on a new project with a large existing codebase and an active group of developers. On first impression, the code is messy and contradictory. It is plagued by corner cases and inexplicable design decisions. Your first thought might be to discard all of it and start over fresh. Indeed, some of the long-time contributors agree.

With time, however, you begin to understand some of the design decisions that went into the code. Many of the pure abstractions failed, and the previous contributors patched the code in order to achieve workable results in particular circumstances. In most cases, the original design was roughly followed, but parts of the code were extended or trimmed to accommodate for bugs or adjust to new circumstances. There are some new users of the code, as well—other groups have started using the code to do things that the original developers had never foreseen. Those new users have to be accommodated. The code may be messy, but at least it is understood, and it works where it needs to.

This scenario, which any programmer would dread, is like the current state of intellectual property law. The law is a code, just like computer code. It is even described that way; the books that hold the laws are described as the United States Code (USC). There are definitions, reserved words, and code sections. There are the rough equivalents of subroutines, symbol tables, and linkers. Lawyers and judges act as interpreters. (Lawsuits concerning single passages of the code often take years, making other interpreted languages look like a lap of the Indianapolis 500 in comparison.)

It gets worse: every line of the legal code was written by committee, and almost every line of it has been patched by a later piece of legislation or modified by a court. Indeed, IP law is rooted in a more than 200-year-old codebase. Is it any wonder that it is a mess?

Nevertheless, there is usually logic behind the apparent messiness (or even madness) in the law. Just as with the long-time developers above, the original design of the intellectual property code has been stretched in some places and squeezed in others to make it fit new circumstances and changed priorities. Also, like the developers above, new laws have come to depend on the specific structures defined as intellectual property. We even have courts to carry out a form of test-driven development for new laws. Like the code described above, it may be messy, but at least it is understood, and it usually works where it needs to.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Types of Intellectual Property

Content preview·Buy reprint rights for this chapter

There are four main branches of intellectual property, each designed to protect a different type of intellectual product. Later chapters will focus on individual types of intellectual property. For now it is enough to introduce the four primary systems that constitute IP.

Patents are time-limited statutory monopolies designed to protect inventions and technological developments. In return for full disclosure of your idea, you are granted the ability to prevent anyone else from making, using, selling, offering for sale, or importing the invention. Patents last for a maximum of about 20 years, after which the invention becomes part of the public domain.

During its life, the patent protects all implementations of a particular idea. You have the right to prevent other people from practicing (either making or using) your invention, even if they independently invent or re-implement the advancement described in your patent (in other words, even if they didn’t copy your idea).

Because patents offer such strong protection, they are designed to be hard to get. A patent must disclose an invention that is “useful,” “novel,” and “non-obvious.” Unfortunately, this doesn’t mean that all granted patents are useful, novel, and non-obvious! Further, the patent must completely describe the best way to implement the invention using highly technical language. Well-drafted patents usually cost from $10,000 to $50,000 to obtain and generally require the assistance of a registered patent lawyer.

Copyrights are limitations on the expression of an idea. They are designed to protect paintings, sculptures, writings, boat hulls, dramatic works, architectural drawings, and anything else that shows individual creative expression. According to the copyright statute, copyright protection automatically attaches to anything you create as soon as it is “fixed in a tangible medium of expression”—basically, as soon as it is written down or recorded somewhere. Copyrights can last from 90 to about 150 years, depending on the circumstances.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Intellectual Property and Market Failure

Content preview·Buy reprint rights for this chapter

Intellectual property starts with economics. Intellectual property law is, at its most basic, an attempt to remedy a failure in the market for knowledge. We want more knowledge in society, but the nature of knowledge tends to discourage (or technically, underencourage) efforts to create and share new ideas.

Normally, economists analyze society in terms of preferences, markets, and incentives. We all have preferences—things that we want and things that we don’t want. A market is the place where we exchange goods and services with others, making decisions about how to best satisfy our preferences. There are costs (incentives) associated with getting what we want; the “price” of something is the result of balancing how much we want some good (our demand) with how much other people are willing to provide that good (the supply).

The interesting thing about markets is that they involve tradeoffs. Because we have limited resources, we have to make choices between different goods. If something costs very little, we tend to substitute the low-cost goods for high-cost goods.

Normally, the balancing of costs and preferences results in an optimal aggregate distribution of goods. Every once in a while, however, we encounter a market failure, a situation where balancing costs and preferences results in overproduction or underproduction of a certain good.

In this particular case, the good that we want is knowledge. As we will see, creating new knowledge is costly, and normal markets tend to discourage the creation of new knowledge. Intellectual property is the tool that we use to remedy this market failure. That is, intellectual property is the tool we use to change incentives to increase the amount of knowledge in society.

More specifically, intellectual property law is designed to fix the problems that arise because: 1) knowledge costs more to create than it costs to copy (or consume); and 2) secret knowledge is more valuable to individuals, but shared knowledge is more valuable to society.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Evaluating the System

Content preview·Buy reprint rights for this chapter

So, does intellectual property work? Yes...and no. In one sense, our intellectual property system has been phenomenally successful in encouraging people to create intellectual property. For the past 50 years—and especially the past 30—there has been a tide of stronger intellectual property protections across industries. This growth in IP has encouraged people to invest heavily in the development of new intellectual property, and has moved IP to the core of many business strategies. For most businesses in the United States, in fact, the intellectual property part of the business is the most valuable aspect of the business.

Nevertheless, people’s attitudes about intellectual property are changing. We are starting to see a swing away from stronger intellectual property protections, and toward more openness and collaboration. As things change, it is important to understand not only the current intellectual property laws, but also the structure and purpose of the underlying system. Part of this swing toward openness is reflected in the growing acceptance and importance of open source software.

Whether or not people agree about the desirability of intellectual property, it still has to be acknowledged as an independent discipline and a major force in the computing industry. For example, there are intellectual property divisions in law schools, intellectual property departments in corporations, and intellectual property lawyers in the telephone book.

Furthermore, different concepts under the intellectual property umbrella work together and it takes a lawyer to help you understand how they are coordinated and apply to your specific situation. For instance, should a particular inventor rely on a trade secret or a patent for protection? Is copyright enough to protect a cartoon character, or should it be registered as a trademark as well? These concepts become entwined through use.

The next chapters take a deeper dive into the specifics of each branch of intellectual property. Except where necessary, I will not return again to the broader foundations of intellectual property law. As you read, however, it would be valuable to consider the philosophical foundations as they relate to each branch of the law. In some cases, the original intent has been frustrated by later developments in the law. In other cases, the utilitarian bargain is more or less working as expected.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Chapter 2: The Patent Document

Content preview·Buy reprint rights for this chapter

Imagine you are a programmer learning a new computer language. When you are given a program in the new language, the syntax is usually obscure even if the overall constructs are familiar. Repeated exposure and study may alert you to reserved words and give you an idea of their meaning, but fully understanding the program requires you to know the syntax and semantics of the language as well as the problem domain addressed by the code.

Patents are the type of intellectual property that most closely resemble code in this context. A well-written patent document is highly structured, with required sections, definitions, reserved words, and “program flow” constructs.

As a result, patent documents tend to be very boring, somewhat ungrammatical, and only semi-intelligible to an ordinary competent English speaker. Even when you understand the problem domain addressed by a particular patent (i.e., the area of technology described within the patent) you do not fully understand the patent until you also have a handle on the specificities of the patent language.

In fact, patents are specifically like pattern-matching code such as regular expressions. Instead of matching text, however, patents match technology. As anyone who has used regular expressions can tell you, though, very complex regular expressions don’t always match what you think they should when you first run them. Patents are similar; in truth, nobody (not even patent lawyers) knows exactly what a patent will match until the patent is tested by running it through a court.

Patent law differs from other forms of intellectual property in its substantial focus on the patent document itself. The limits and bounds of the patent grant are almost entirely defined by the words and phrases used in the patent instrument.

This chapter is one of two in this book that look at patents, one of the most controversial topics at the crossroads of computers and intellectual property. Because patent law is so intimately concerned with the language and structure of the patent document, it is valuable to begin by looking at the patent document itself. Only after we understand the patent document can we begin to look at getting and using the patent.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Construction of a Patent

Content preview·Buy reprint rights for this chapter

Pattern-matching code usually has a compact form used to represent the range of possible inputs matched by a particular expression. Examples include regular expressions, tag tables, document type definitions (DTDs), and schema. State machines or automata can also be used to represent patterns.

As noted earlier, patents are very similar to code, pattern-matching code in particular. It should not be surprising, then, that a patent document has a detailed file format, not unlike the file formats used by your computer.

For example, the standard file format for Linux is called the Executable and Linking Format, or ELF for short. Every ELF file begins with a structure called the ELF header. This structure contains information that describes the contents of the file. It includes the file’s magic-number signature, with flags indicating whether the contents are 32-bit or 64-bit, little-endian or big-endian, etc.

After the ELF header comes the program header table, which points to the various parts of your program. This is followed by one or more code segments and (usually) a section header table used for linking your program.

The format of a patent is surprisingly similar to the format of an ELF file. The first page of the patent is called the face of the patent and acts like a header for the patent file. It contains information about the patent. For example, it includes the patent number, the list of inventors, the patent’s magic dates, a list of cited references, and an abstract describing the contents of the file.

After the face of the patent come the figures and short descriptions, designed to illustrate the various parts of your invention. This is followed by the detailed description, a series of paragraphs describing the implementation and functioning of your invention as illustrated by the figures. The final part of the patent consists of the claims, a series of sentences describing the bounds of legal protection granted by the patent.

The similarities are illustrated in .

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Face of the Patent

Content preview·Buy reprint rights for this chapter

The face of the patent contains metainformation about the patent—required dates, numbers, outside references, etc. We will examine certain portions of the face in detail.

The largest feature on the face of the patent (aside from the designation of the document as a United States Patent) is the assigned patent number. Patent numbers are assigned in order as patent applications are approved. Therefore, the assigned patent numbers not only provide unique identifiers for each invention, but also serve as a running tally of all patents approved by the United States Patent and Trademark Office (USPTO or PTO) since the organization of the office on July 4, 1836. (Patents were approved prior to this date by the secretary of state; there were about 10,000 patents between the first patent act in 1790 and 1836.)

There is not any necessary correspondence between a patent’s number and its application date, its issue date, or any other date associated with the patent. Because numbers are issued in order of approval, however, you can get a rough idea of the age of a patent by looking at its number. At the time of writing, the most recently issued patent is number 7,278,169, for “Controlling the downloading and recording of digital data.” The oldest enforceable patent is number 4,739,880 for a “Laundry Hamper.” Patents with numbers lower than that have fallen into the public domain. By the time you read this, however, the Laundry Hamper will be old news, and many other patents will also have entered the public domain.

Some patents have letter codes at the start of the number, for example, D552,191 for a “Dragon” design or RE39,316 for a “Sliding visor.” These codes refer to specific categories of patents as opposed to standard utility patents. shows the various specialized patent types.

Table : Specialized patent categories and their numbers

Example patent numbers	Specialized category

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Conception of the Invention

Content preview·Buy reprint rights for this chapter

Conceiving an invention is more than just “thinking it up.” For example, most of us have “thought up” teleportation. What we haven’t thought up are the specifics of a working idea. Even if we assume that someone already came up with a machine that would be theoretically capable of teleportation, but they just didn’t realize that the machine could be used for teleportation, that person would still not have conceived teleportation in the legal sense. To be an inventor, you must come up with and recognize that you have a working idea.

The conception of an invention is complete if an inventor can provide a description that would enable a person having ordinary skill in the art to actually make the invention without extensive research or experimentation. This is sometimes called an enabling disclosure.

Reducing an invention to practice involves the process of filling in the technical details necessary to make the invention work. Sometimes the process of stating an idea makes the reduction to practice obvious; many times it does not.

A good example showing the distinction between conception and reduction to practice is the story of Thomas Edison and the lightbulb. Very early on, Edison had a working idea—that passing electricity through a resistant material could cause it to glow, providing light. Turning that conception into a workable lightbulb, however, was difficult. Edison tried over 6,000 different materials before trying the carbonized cotton thread filament that resulted in patent number 223,898.

A reduction to practice can be either actual (you actually build the invention) or constructive. I stated earlier that the conception is complete when the inventor can make an enabling disclosure. Constructive reduction to practice is complete when the inventor actually makes that disclosure.

In many circumstances, there is no question about inventorship. Either one person or a small number of people conceives, designs, and builds the invention. When there is more than one person, all of them are listed as co-inventors. Nevertheless, there are two recurring issues that complicate real-world inventorship discussions: political and business pressures, and determining contributions.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Body of the Patent

Content preview·Buy reprint rights for this chapter

The body of the patent is commonly called the specification. It makes up the bulk of the patent document, and is the part of the document most people refer to when they talk about the patent. On first glance, this seems reasonable; after all, the specification contains all of the pictures, equations, method descriptions, and assorted details necessary to make the invention work.

It doesn’t matter; much of what is written in the specification has relatively little effect on what is covered by the patent. Most experienced patent lawyers will skip right to the claims when interpreting a patent. This is changing, however; there are some recent cases that held patents invalid based on screwy comments or poor drafting in the specifications. Further, any ambiguous claim terms are interpreted by referring to the specification and patent history. Nevertheless, the fact remains that the specification is one of the least legally significant parts of the patent.

So why include a specification at all? One answer goes back to the utilitarian bargain inherent in the patent law. The specification preserves and communicates to society the knowledge held by the inventor. The technical know-how contained within the specification gives the patent long-run value by enabling others to make and use the invention after the patent expires. The short-run value (the boundaries of the right to exclude) are largely defined by the dates on the face of the patent and the claims at the back.

With that said, the specification, while not great reading by any means, is the most interesting part of the patent. It generally includes the drawing sheets, the background and summary of the invention, descriptions of the drawings, and a detailed description of various aspects of the invention.

The drawing sheets are placed right below the face of the patent. As described earlier in the section titled ,” a patent usually has at least one figure. Most patents have many figures, varying in type according to what they are intended to show.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Claims

Content preview·Buy reprint rights for this chapter

The claims are the legal heart of the patent. Just as the patent dates define the temporal boundaries of patent protection, the language of the claims defines the intellectual boundaries of the patent. As described by 35 U.S.C. § 112:

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

Translated, this means that the claims are the invention. Each separate claim is a separate invention and represents a separate grant of rights from the government.

Patent claims appear at the end of the patent as a series of numbered sentences. Each patent claim is one sentence. Because it is difficult to shoehorn the complete subject matter of the patent into a single sentence, patent claims are among the most awkward and ungrammatical sentences you will ever read. Nevertheless, after you learn the ropes and work your way through a few patents, you will get a feel for the rhythm and conventions of claim language and will be better able to understand new claims.

A claim, like the patent as a whole, is highly structured. It has a preamble, transitional phrase, one or more limitations, and optional effects clauses. shows claim 1 for Amazon’s ’411 patent.

Another similarity between patents and code is that indentation is used to make the logical structure of the claims more apparent. There are no official formatting standards for claims, but the formatting of the ’411 patent claim is typical. Each noun phrase starts on its own line, and subparts are indented to show their relationship to their parent elements.

Figure : Claim 1 of Amazon’s 1-click patent

The preamble

The preamble has only one requirement: it must specify the type of invention being described by the claim. For example, the preamble may recite a system, an apparatus, a method, a composition of matter, or any other type of patentable advance.

In addition to defining the type of invention described by the claim, the preamble may also state a goal or introduce terminology. For example, Amazon’s 1-click patent states, “A method for placing an order for an item” (see ). Other patents may specify a “A wireless networking system for connecting mobile computers to the Internet.”

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Other Resources

Content preview·Buy reprint rights for this chapter

There are a number of resources available on the Internet for looking up patent documents. The best overall search interface is provided free by the USPTO at http://www.uspto.gov/patft/index.html. There are a number of searches, such as the quick search and the patent number search, but the real jewel is the advanced patent searching capability. The PTO has divided up and indexed all U.S. patents granted since 1976. A nestable Boolean search is available, including operators for each field of the patent and range operators for the dates. Results are provided as HTML rather than in the standard patent document format, but the database is always up-to-date.

Google also has an excellent patent search interface available at http://www.google.com/patents. Google’s search doesn’t have the same per-field granularity provided by the PTO and its information can sometimes be spotty due to the necessity of using OCR to recognize many old patents. Nevertheless, Google’s full-text searching can’t be beat and it offers easy PDF downloads of each patent.

Finally, patents in PDF format can be downloaded either through Google’s patent search, http://www.pat2pdf.org or Free Patents Online (at http://freepatentsonline.com). For the latter two services, however, you will need to know the number of the patent you are looking for first; neither of these services really provides a way to search or browse the patents.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Chapter 3: The Patent System

Content preview·Buy reprint rights for this chapter

One of the first assignments frequently given to new programming students is the Fibonacci function: given a number n, return the nth number in the Fibonacci sequence. A typical response to this assignment might be coded as follows:

def fib(n):
    if n == 0: return 0
    elif n == 1: return 1
    else: fib(n−1) + fib(n−2)

Unfortunately, this code has a trick: trying to compute fib(n) any numbers larger than 40 or so results in incredibly long running times. In algorithmic terms, this code has complexity O(2ⁿ). In other words, the running time increases exponentially as the number requested goes up. Before n gets very large, the running time is too long to be feasible.

The reason why the fib function is so expensive is because it redoes the work each time. If you ask for fib(5), the function also works out fib(4) and fib(3). The calculation of fib(4) in turn works out fib(3) and fib(2). The calculation of fib(3) works out fib(2) and fib(1), etc. There is a lot of duplicated effort, and that duplicated effort takes work and time.

One technique for speeding up this function is memoization. Memoization works by caching the results of each call in a lookup table. The first time a function is called with certain arguments, the memoized function computes the result and associates the function arguments with the result value. When the function is called later with the same arguments, the memoized function returns the cached value rather than spending time and processing power computing the results again.

For example, a memoized Fibonacci function might look like the following:

memo = {0:0, 1:1}

def memo_fib(n):
    if n in memo: return memo[n]
    else:
        result = memo_fib(n−1) + memo_fib(n−2)
        memo[n] = result
        return result

Unlike the original fib function, this function can be called with very large numbers and will return almost instantly.

It is important to note that a memoized function is always slower than a normal function the first time it is run. The functions associated with memoization—the value lookup, cache miss, and association of the result with the argument list—all take time and processing power. Nevertheless, memoization is a critical optimization tool. If the cost of creating the result is much greater than the cost of the caching machinery, returning a cached result is much cheaper than re-creating the result for each function call.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

The Patent System As a Knowledge Cache

Content preview·Buy reprint rights for this chapter

The patent system as a whole can be compared to applying memoization to the process of invention. Creating a new invention is like calling an expensive function. Just as it is inefficient to recompute the Fibonacci numbers for each function invocation, it is inefficient to force everyone facing a technical problem to independently invent the solution to that problem. The patent system acts like a problem cache, storing the solutions to specific problems for later recall. The next time someone has the same problem, the saved solution (as captured in the patent document) can be used.

Just as with memoization, there is a cost associated with the patent process, specifically, the approximately 20-year term of exclusive rights associated with the patent. Nevertheless, the essence of the utilitarian bargain is that granting temporary exclusive rights to inventions is ultimately less expensive than forcing people to independently recreate the same invention.

Thus, patents are an expression of the utilitarian model for intellectual property described in . They can be viewed as a contract between society (represented by the government) and an inventor. In return for the development of new technology and its eventual dedication to the public domain, the government agrees to grant a roughly 20-year exclusive right to make, use, sell, or import the invention. After the patent expires, the patent is dedicated to the public domain for anybody to make, use, or sell.

Further, the patent system can also be viewed as an optimization of our collective inventive capacity. The invention process is expensive. Even though many inventions seem obvious in retrospect, it is very difficult to come up with the original breakthrough idea. The patent system catalogs these inventions—solutions to problems—as patents, making them available for others to use.

Returning to the comparison we made in between regular expressions and patents, it is interesting to note that regular expression evaluation is one of the most frequently memoized operations in languages that support regular expressions. Just as described above, the regular expression is evaluated and the result cached; subsequent use of the regular expression reuses the cached version.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Requirements for Getting a Patent

Content preview·Buy reprint rights for this chapter

Patentable subject matter is set out by four sections of the U.S. Code: sections 101 (subject matter and utility), 102 (novelty), 103 (obviousness), and 112 (enablement). Each of these sections has thousands of pages of interpretation in books and court cases; we will whittle these four horsemen of the patent act into a general framework that we will use to explain the structure and mechanics of the patent law.

Because this section is so short and so important, it is reproduced here in its entirety:

§101. Inventions patentable

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore [sic], subject to the conditions and requirements of this title.

The first important point to note is that the law is written such that it assumes that a patent should be granted unless certain conditions apply. Although the conditions for getting a patent are frequently stated in the negative (“You can’t get a patent unless...”), the default position in the law is that anything “new and useful” is patentable.

Statutory subject matter

Section 101 defines what is considered statutory subject matter: processes, machines, items of manufacture, and compositions of matter. Processes are defined as any “process, act or method” and are directed to technical and industrial processes (who says legislators don’t understand recursion?). Machines don’t have to be wholly tangible and can include systems and devices. “Items of manufacture” describes items that are made somehow via human effort. “Compositions of matter” are chemical compounds and mixtures.

These statutory categories can interlock. For example, the inventor of a new kind of peanut butter sandwich could receive three different patents: a process patent on the method of making the sandwich, a machine patent (or device patent, as they are frequently called) on the sandwich-making contraption, and an article of manufacture patent on the sandwich itself.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Getting a Patent

Content preview·Buy reprint rights for this chapter

So, you have come up with a new invention: you have invented a mousetrap that can read email (Zawinski’s Law states that every program attempts to expand until it can read mail—programs that cannot so expand are replaced by ones that can). The process of protecting your email-reading mousetrap will usually vary depending on whether you are in a typical corporate environment or in a startup/solo inventor environment.

Corporate patent processes vary from company to company. Some procedures may be essentially ad hoc, while others may be completely formalized. Generally, the more established the company, the more formal the patent process. In most cases, corporate patent processes go through four stages: disclosure, evaluation, application, and prosecution.

Disclosure

The first stage in the corporate patent process is disclosure—letting your company know that you have come up with a new and possibly patentable idea. Informally, disclosure may be as easy as sticking your head into your boss’s office to tell him about your idea. In most cases, though, your disclosure will require a written record, known as an invention disclosure form.

The disclosure form serves a couple of purposes. First, it serves as a record of the invention. Second, it allows your company to evaluate the invention for patentability, and third, it serves as an initial disclosure for the patent attorney.

Most disclosure forms have two parts, bookkeeping data and a description of the invention. The bookkeeping data is generally basic, consisting of a title, conception date, and list of inventors. Your company may also ask about the relationship of your invention to current development, both at your company and at competitors’ companies. They will also probably ask about whether you have told anybody else about your invention.

The description of the invention forms the bulk of the disclosure. Typical forms ask for background on the invention and a detailed description of how the invention works. You may be asked to provide code, examples, engineering specifications, design diagrams, and flowcharts, basically anything necessary to describe the invention to another engineer.

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Patent Proliferation

Content preview·Buy reprint rights for this chapter

Patents are the most expensive and powerful weapons in an IP arsenal. For some companies, particularly pharmaceutical companies, patents are the lifeblood of invention and the key to profitability. For other companies, particularly software companies, patents are the rough equivalent of madly proliferating nuclear weapon arsenals.

For example, an unscientific survey was performed on the popular patent blog “Patently-O” in late 2007. Readers were asked whether the patent system, taken as a whole, had been positive (made money) or negative (lost money) for their companies. shows the results from 131 corporate employees, all of who were highly involved in their companies’ patents and patenting processes.

Figure : Corporate perception of patents across industry groups (used by permission of Dennis Crouch)

These results merge responses from small corporations with those from large corporations. It also excludes individuals at law firms, government entities, and educational institutions. Individuals responded to the question, “Overall, has your company made money from the patent system?” There were three potential responses: “Clearly positive (made money),” “Unsure whether positive or negative,” and “Clearly negative (lost money).” For the graph shown in , these responses were converted to a simple numerical scale: 1, 0, and −1, respectively. The y-axis ranges from −1 to 1.

The most interesting aspect of this graph is that software companies consider participating in the patent system to be a money-losing proposition—but they still do it. Even companies that are highly successful in getting software patents can have an uneasy relationship with the patent system. During Patent Office hearingsconcerning software patents and industry, Adobe’s principal scientist, Douglas Brotz, stated:

Good morning, Mr. Secretary and members of the Panel. My name is Douglas Brotz. I’m Principal Scientist at Adobe Systems, Incorporated, and I am representing the views of Adobe Systems as well as my own....

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Chapter 4: Copyright

Content preview·Buy reprint rights for this chapter

The movie Antitrust came out at the height of the dot-com boom. Antitrust was Hollywood’s take on the geek chic of the late 1990s: the story of a few heroic open source hackers taking on an evil, grasping corporation situated in the Pacific Northwest.

Predictably, it was awful.

Buried among all the things that this movie got wrong, though, was one thing it got right: early in the movie, the protagonist is seen wearing a t-shirt that labels him a “code poet.” In one phrase, they captured why software is subject to copyright law—because it is a form of personal expression, not just a means of accomplishing some function.

Understanding the subtle distinctions inherent in that statement is essential to understanding the storms of controversy that inevitably arise around copyright issues.

Copyright is probably the most difficult of the four major branches of intellectual property law. Although patent documents (and some aspects of patent practice) are more complex and intricate than the copyright equivalents, the underlying mechanics of the patent system are relatively simple.

Patents can be seen as a straightforward exchange: describe your invention to society and in return receive exclusive control over the use of the invention. After a while, the period of exclusive control ends and everybody receives the benefit of your inventive effort.

Copyright is superficially similar but fundamentally different. Like patent law, copyright is part of the grand bargain discussed in . In return for the creation of knowledge, we also grant to authors a time-limited property right over the fruits of their intellectual efforts.

However, copyright has a far more human dimension than the mechanical results of inventive effort; it is much more about who we are than about what we do. As a result, copyright is much more subtle than patent law. In particular, there are two fundamental differences between patents and copyrights:

• Patent law covers function; copyright law covers expression.
• You have to work to get your invention

Additional content appearing in this section has been removed.
Purchase this book now or read it online at Safari to get the whole thing!

Copyright in Context

Content preview·

Return to Intellectual Property and Open Source