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Friday, 19 August 2011 12:00

Alt Text: Patents Impending

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Alt Text: Patents Impending

The recent round of patent-based suits and countersuits among major and minor players in the smartphone industry has raised questions about the U.S. Patent Office’s policies.

bug_altextOn second thought, it raises just one question: What the hell?

Everyone agrees that patent law is a huge mess, the sort of mess rarely seen outside of Fresno’s annual “Unsupervised Toddler and Malamute Spaghetti Feed.” And yet, it remains a mess, year after year, in spite of pundits, politicians and protesters standing around clucking their tongues and making that finger gesture of shame that only grade-schoolers usually do, where you kind of slide one finger across the other as if you’re trying to start a campfire. Nothing changes.

I’m not a conspiracy theorist, in spite of the multinational high-level shadow campaign to convince people I am. But I also know that American politics, much like the starship Enterprise, is fueled by a matter-antimatter warp core. The matter is made up of actual policies and laws. The antimatter is made up of what those in power say they believe in. Combine the two in the proper proportions and you’re off to explore strange new forehead ridges. What’s left over from the reaction becomes policy, the actual rules you need to live by in order to make your way through society.

What I’m saying here is that you can’t look at what people say they want to get the real picture. Every year, thousands of politicians — liberal, conservative and just plain weird — say they’re going to do things that they know damn well they’re not going to be able to do, or even that they don’t actually want to do in the first place. If this is a revelation to you, you read at a remarkably high level for a second-grader.

You also can’t look at the law itself to see what’s going on. When was the last time you got pulled over for doing 68 in a 65 mph zone? If you ever have been, it’s because either you pissed off a cop, or someone else pissed off a cop and the cop decided to take it out on you.

In the case of patent laws, at this point you can’t write a “Hello world” program without violating patents on greeting algorithms, textual display over a mixed-protocol network and use of spaces to delineate word boundaries in an applications development environment.

If you actually create something useful and put it on the internet — or even worse, a smartphone — you’ve probably committed the patent equivalent of bringing a 15-year-old drug mule across the border to help you sell enriched uranium to graffiti artists. And yet you probably won’t hear from a lawyer until you make your first hundred million.

So if you can’t believe the speeches and you can’t believe the letter of the law, how can you tell what’s what? Cui bono, my friend, Cui bono. (No, that’s not a French Canadian U2 cover band — it’s a Latin phrase meaning “to whose benefit?”)

Look, why do some country clubs cost $100,000 to join? Sure, maintaining the greens and hiring a waitstaff whose members are capable of hiding their seething class resentment is part of it, but the main reason is to exclude everyone who doesn’t have a hundred thou to blow. You can fake the look, you can fake the talk, but you can’t fake enough money to never have to sit next to a blue-collar schlub at a restaurant ever again.

Similarly, the reason patent laws exist is to provide what’s cheerfully known as a “barrier to entry.” If Motorola licenses a few patents from Apple, and Apple licenses a few patents from Motorola, it all comes out even and the lawyers remain happy. But if you create a product that seriously competes with both Apple and Motorola, what are you going to do when the cease-and-desist order hits your mailbox?

Startups are like young calves cavorting across the green fields of commerce.

In some cases, patent laws are how big companies keep little companies from becoming bigger companies. But obviously that doesn’t happen every time, or else there wouldn’t be new companies. And if there weren’t new companies, people might actually want to do something. Instead, the big companies usually — but not always — let the little companies grow.

Startups are like young calves cavorting across the green fields of commerce. If you’re lucky, you’re allowed to grow up to be a dairy cow, at which point the big players send patent lawyers to attach a milking machine to your udders and enjoy the steady supply of fresh cream. If you’re not lucky, someone’s in the mood for steak — or veal — and there’s little you can do about it.

Laws don’t get enforced unless someone with money wants them enforced. And laws don’t get reformed unless someone with money wants them reformed. So when you see a law that’s erratically enforced and yet never changed, you know someone with money is just fine with the status quo.

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Born helpless, nude and unable to provide for himself, Lore Sjöberg eventually overcame these handicaps to become an innovator, an excavator and an elevator.

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French (Fr)English (United Kingdom)

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