February 27, 2006

The way you wear your hat
The way you sip your tea
The memory of all that
No, no they can’t take that away from me
-George and Ira Gershwin

Unless of course George and Ira's lyrics are made meaningless in a patents dispute and the particular 'way you wear your hat' has been secured, nailed-down and salted away to lie in wait until you walk out the door.

Okay, so I exaggerate, but not by much. A how-you-wear-your-hat patent isn’t all that far from what we euphemistically call a ‘business-method’ patent. Business method? You mean like knocking on doors or soliciting on the phone? C’mon. Not funny.

Maybe not all that funny, but true enough to put a chill in the air of commerce and raise goose-bumps of avarice among the collectors of such arcane dreck. Dreck, no doubt (with appropriate disclaimers and apologies to Messrs Gershwin), but protectable and (sometimes immensely) profitable dreck.

There are no concrete definitions of patentable business-methods, but that didn’t stop U.S. Patent No. 5,960,411.

That particular piece of lunacy gave Amazon.com a patent to the ‘1-click’ method of processing a payment. I understand protection for the process, the actual code Amazon wrote to fulfill a sale, but the name? And the right of restriction against other companies wanting to develop a different code to tally-up a sale in a single click?

Jeff Bezos, Amazon founder and the Gershwin of e-commerce, suggests
“ that business method and software patents should have a much shorter lifespan than the current 17 years -- I would propose 3 to 5 years. This isn't like drug companies, which need long patent windows because of clinical testing, or like complicated physical processes, where you might have to tool up and build factories. Especially in the age of the Internet, a good software innovation can catch a lot of wind in 3 or 5 years.”

The recent Blackberry flap is a case in point. Distinct from blackberry flapjacks, the tech code dither involves wireless mail-delivery technology an outfit called NTP claims they patented.

The Blackberry (in case you’ve been on another planet) is a much-loved hand-held device that lets you write and receive e-mail from the airport VIP Lounge. One can only hope that other much-loved, hand-held devices are exempt from patent.

NTP is made up of one inventor and a bunch of lawyers. That’s almost a definition of the classic "patent troll" firm that acquires file-cabinets full of patents, only to extort settlements from companies on doubtful infringement claims.

Complicatedly simple, Judge James Spencer has criticized Blackberry for not settling a jury award in NTP’s favor that they are appealing. A jury of 12 men and women found Blackberry guilty of willfully infringing patents and awarded $240 million.

The stickler is that the U.S. Patent and Trademark Office is reviewing the patents and so far has rejected two of five relevant patents that underlie the dispute. A slippery slope, indeed.

Speed-skating into an era of nano-tech, bio-tech and just everyday ordinary tech-tech, it looks like the Patent Office may be way over its head. If they haven’t the expertise or the tools to identify the patentable aspects of increasingly arcane cutting-edge technology, should they be awarding patents or declaring a moratorium while they holler for help?

Patents were developed during the birthing of our nation, to protect the honest, hard working, smart person, whoever and wherever he might be found. But a reaper, a mouse-trap or a power-steering pump are all products probably more understandable within the bowels of the Patent Office.

You can’t get much harder-working or smarter than a modern scientist or software geek, but their product is often as opaque as its uses.

Einstein patenting relativity? Doppler patenting his understanding of why a train sounds different going than coming? Interesting possibilities.

Patents were meant to protect an idea so rare and great that the person who thought of it was abled by patent to make some dough without a big company grabbing his idea and producing it faster and cheaper.

The current ‘trolling’ farms turn that on its ear. Like comedy-writers for sitcoms, the fashion is to dream a new way to wear your hat, then sit back like a spider at the corner of the web.

No, no they can’t take that away from me.

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