Brian PrenticeI’ve taken a little time to read Microsoft’s position on their infringement of i4i’s patent relating to a system for manipulating the architecture and content of a document separately. This is the patent case which has resulted in the initial injunction that would stop the sale of Microsoft Word. In my initial post on this topic I was of the view that:
“…this is not a typical rubbish software patent that earns its filer a 20 year monopoly on the dead obvious.”
The key concept of the patent claim is that there is a separation of a document’s content from its formatting code into two distinct entities. That should have taken Microsoft off the hook. After all, the offending file formats have the formatting code stored together with the content.
But, that’s not how the courts decided to interpret the idea of separation. This is achieved, in their view, as long as there was “a portion of memory for storing a metacode map” and “a portion of memory for storing mapped content.”
Well, that changes everything!
If i4i’s claim applied at a file level – that is one distinct file for the content and another one for the content – I still feel that was innovative 15 years ago when the patent was filed (although Microsoft claims that two SGML editors – Rita and DeRose – were existing programs that did exactly that). And, as noted, Microsoft is not infringing that idea.
But if a metacode map and its associated mapped content are just locations in memory then this entire patent should be invalidated based on lack of novelty. Under these conditions the markup codes are just programmatic abstractions. And such abstractions have been around since day dot. That’s what variables, functions, sub-routines and object instantiations are!
So maybe i4i’s patent aren’t rubbish. But the way the courts have decided to interpret it sure is! As an advocate for software patents this is incredibly frustrating. Every time one of these loose interpretations is applied – either by the courts or the patent and trademark office – it not only undermines people’s confidence in the system but obscures the true nature of innovation in our industry.
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8 responses so far ↓
1 FredericBaud August 31, 2009 at 1:42 am
What else would you expect?
Contrary to physical property where trespassing can easily be monitored, intellectual property would require incredible level of expertise: you’d need law enforcers with deep understanding in technical concepts, and vast knowledge of prior art. So you’re left with trying to enforce the law with either ordinary people, with the dire consequences we see; or – worse – you’d have to assign people with the necessary expertise with a terrible opportunity cost for the community, severely lacking these talents in better uses.
Brian, you may like the idea on paper, but how can you continue to support it when it is obvious that its implementation is nessarily a major wealth destruction?
2 Brian Prentice August 31, 2009 at 2:17 am
FredericBaud – this was not a mistake resulting from the absence of any “deep understanding in technical concepts.” If the courts can figure out patent issues relating to biotechnology or even modern machinery they could have figured this one out! And apparently the original patent examiner had originally said this “in memory” interpretation was not patentable.
As a statement of principle I do not believe that the challenges society faces in enforcing a law should not be considered as a valid reason to avoid having the law in the first place. Patents have always posed such domain expertise challenges. So, we don’t throw patents out because of it – we figure out ways to adapt and manage the system effectively. Criminal cases often hing on complex DNA analysis. Should we drop this as evidence if judges and jurors are not schooled in genetics?
The real wealth destruction will occur if people can’t be rewarded for their efforts in innovating.
3 FredericBaud August 31, 2009 at 3:05 am
Brian,
Let’s not mix criminal cases where there is usually a moral reason to enforce laws at whatever cost, with IP laws where it is only an economical question from begining to end.
We already discussed at length the incitation, or un-necessary incitation aspect of IP laws, and we know we do not agree.
What I’m saying here is that – on top of being a wealth destruction by preventing recombination (where we don’t agree) – enforcement is also a wealth destruction because, either you do it poorly, or even worse you’d have to do it at a great opportunity cost if you want to do it right.
Your challenge is to prove that you could actually enforce efficiently patents at a low cost. If that’s not possible, you should definitely re-assess the whole cost benefit analysis.
But first thing first, do you agree that enforcement of patents is necessarily a great economic strain on the community?
4 Brian Prentice August 31, 2009 at 5:37 am
FredricBaud – Would I agree that the enforcement of patents is costly? Yes. Of course. Does this constitute an economic strain on the community? Well, the point is moot – the community has agreed that patents should exist therefore we either have to; 1) accept those costs or, 2) make the system more efficient and predictable so those costs are minimized.
The challenge, therefore, is not whether I can craft an effective cost-benefit analysis for the enforcement of patent rights. The challenge is how society can improve the quality of patents in order to assure the high cost of litigation is avoided in the first place. But nothing can be done if things go astray at a judicial level. That’s what happened here and, as I mentioned, this is not a result of some lack of technical expertise.
I also disagree with your assertion that IP somehow lacks a moral dimension or that it’s simply an economic issue. Patents are a deeply moral issue that cuts to the way in which society recognizes and rewards innovation.
5 FredericBaud August 31, 2009 at 6:34 am
Brian,
seems to me you’re missing a third point: 3) community can revoke patents either completely or for some categories (software patents being a strong case in mind) and alleviate cost on the judicial system that could certainly make a better use of the freed resources.
Rewarding innovation to the potential detriment of the community could be a moral choice that has not to be questioned through economics. I don’t think anyone has ever claimed things should be that way. Do you? I certainly don’t. And I’m a firm believer in innovation.
6 Brian Prentice August 31, 2009 at 7:51 am
FredericBaud – how does a community revoke a patent without it going through the judicial system? I thought the judicial system was the mechanism society uses to revoke patents. Or do you mean the community should revoke all patents? If so, then I haven’t missed that point at all. I just don’t agree with it! Furthermore, if that is your point then what “community” are you talking about? There seems to be a lot of other communities as committed to maintaining a strong patent system.
Again, I don’t buy the logic you’re using to frame the questions you’re posing me. “…to the potential detriment of the community…” is an oft stated position of those that don’t like patents. But an exclusive property right doesn’t automatically denote a detriment. That does pose limits on what you are calling “recombination” (which others would call infringement).
I also think you need to recognize that the patent system has been built around the concept of disclosure which is purposely designed to promote innovation. The trade-off an inventor makes for their limited, exclusive right is the publication of their invention in order to allow others to improve upon it (not copy or recombine it).
7 FredericBaud August 31, 2009 at 8:33 am
I meant revoke “all” patents. And I meant community as the “entire” community, represented through a democratically elected body, that can decide to revoke the entire patent system. You may not like it, but that’s a possibility you have to include (I don’t like your first 2 points by the way, but I still consider them as a possibility to be evaluated).
I’m entirely open to discuss trade-offs and try to incorporate fact-based analysis to know what makes the most economic sense for the “entire” community. But please, don’t involve “moral” consideration that have no reason to come in this debate.
My understanding is that we definitely defer on the benefits that a patent system or an IP-free system have. You say that a patent system spurs creation while (slightly) limiting recombination. I say that an IP-free system does not deter initial creation and boosts wealth through recombination. There’s not much more we can discuss without agreeing on some measures we could use as facts to weigh the 2 propositions.
At least, we seem to agree that enforcement in a patent system has a cost, where it does not exist in an IP-free one.
8 Brian Prentice August 31, 2009 at 5:10 pm
FredricBaud – I’ll give you credit where credit it due – at least you believe in revoking all patents. While I don’t agree with this position at least it’s consistent. And that’s a whole lot more refreshing then the inconsistent view of many that software and business method patents, alone, should be excluded from being patented.
And sure, I’m prepared to accept an IP-free system as a possibility. Albeit an incredibly slim possibility. In fact, it’s so slim as to be appropriately categorized as a pipe dream.
So, I’m afraid to say but the cold hard truth is that you’ll have to accept that an IP-free system is probably never going to happen. It is, however, within the realm of possibility that we can refine and optimize the system we have so that it’s more efficient, more predictable and meets the needs of a 21st century economy.