Intellectual Property: Silly or Sinister?

By Levine, David K. | Freeman, January/February 2011 | Go to article overview

Intellectual Property: Silly or Sinister?


Levine, David K., Freeman


Imagine a land recently seized from a foreign power where there is little law and a lot of gold. Since nature abhors a vacuum, prospectors quickly adopt the conventions of private property: Whoever is first to put four stakes in the ground is the proud owner of the land and any gold beneath. This would pretty much describe California in 1848. It makes a lot of sense, too: We can't both mine for gold in the same spot, so only one of the two of us can claim the land. "First come first served" seems as fair a basis for adjudicating claims as any.

Now imagine that some lobbyists have staked out part of Antarctica and brought suit in federal court against tourists who trespassed on "their" land. Fine, you say: After all the lobbyists got there first. Replace "Antarctica" with "ideas" and you have the surreal world of "intellectual property." Unfortunately, while you and I cannot both mine for gold in the same spot, we can certainly make use of the same idea, and therein lies the heart of this story.

A good spot to start the tale is in 1998, when a panel of judges ruled that software was patentable, thereby starting the intellectual property equivalent of the California gold rush (State Street Bank & Trust v. Signature Financial Group). Every child knows how to answer the door: "Knock knock." "Who is there?" But what if I taught a computer how to say, "Who is there," and patented the idea? Absurd, you say. Well, we all understand how to run an auction - but do not try doing it with a computer because the holder of U.S. Patent 7,702,540 (also known as e-Bay) will sue you. And that in a nutshell is what software patents are all about.

The entire concept of being able to patent a commonly used idea because it is implemented on a computer is silly, but this article is too short to review all of the millions of software patents issued since 1998. A famous and not-so-famous example may serve to reinforce the point. Raise your hand if you have not heard about the Amazon "one-click" patent (U.S. Patent 5,960,411) No hands? Okay, if you can patent one click, why not two? Sorry, that you cannot do. Why not? Microsoft beat you to it (U.S. Patent 6,727,830).

Software patents, though, are only a modern incarnation of an ancient evil. How about patenting the peanut butter and jelly sandwich? Too late, already done- in 2005, no less (U.S. Patent 6,874,409). That one did not hold up in court. There are so many silly patents that there are two websites, totallyabsurd.com and patentlysilly.com, to publicize them. Many seem to tell a tale of inventors with little sense - and a government patent office with even less. How about a thong diaper (U.S. Patent D539422)?

Here is one that was approved by the eagle eyes at the US. Patent Office (U.S. Patent 6,637,349): "A motorized picnic table having a drive mechanism, wheels connected to and driven by the drive mechanism, a table mounted above the drive mechanism, and at least one seat adjacent the table. In the preferred embodiment, the seats are bench- type seats and flank the drive mechanism."

That was "invented" by Gregory A. Lafferty, "approved" by patent examiners Robert Olszewski and James S. McClellan, and lawyered by Baker & Daniels.

And what was the patent examiner smoking when he approved this one?

A method of swinging on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other (U.S. Patent 6,368,227).

But if you think patenting the obvious is silly, then what about patenting the impossible? Do these inventors sit around and watch Star Trek all day, then rush off to the patent office? U.S. Patent 6,025,810 protects the warp drive: "[This] 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. …

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