A Patent on Foolishness

 Have you ever used a laser pointer to drive your pet crazy? You may soon have your day in court because you infringed on Patent No. 5443036, "Method of Exercising a Cat," including "any other animals with the chase instinct."

And if you, after reading this, think you better go back to having your dog fetch a plain old stick, beware. There's a patent for that, too. (No. 6360693, "Animal Toy.")

Have you ever sat on a swing suspended from a tree branch, making yourself swing from side to side by alternately pulling on the chains? You're toast, according to the laws protecting Patent No. 6368227, "Method of Swinging on a Swing."

And speaking of toast: You may want to eat your bread unheated from now on, lest you may be found guilty of violating Patent No. 6080436, "Bread Refreshing Method."

In Australia, John Keogh, a freelance patent lawyer striving to expose the faulty system, managed in 2001 to patent a "Circular Transportation Facilitation Device," a.k.a. the wheel.

Patent laws were originally designed to protect truly innovative ideas from being stolen by others, granting the owner 20 years of exclusive rights to his invention. So far, so good.

In 1982, Congress began to fiddle with patent laws. First, a new court was created, the Court of Appeals for the Federal Circuit, that was supposed to relieve district courts--which formerly heard patent appeals--of their burden and provide a consistent policy.

Next, Congress decided that the expensive patenting process was to be supported entirely from fees paid by patent applicants.

In their book Innovation and Its Discontents, Adam B. Jaffe and Josh Lerner, two economics professors, state that ever since the changes took effect, a patent applicant is "much more likely to have the patent granted; the patent is much more likely to be held valid if challenged in court; and the party accused of violating the patent is more likely to be found to be an infringer and forced to pay a large monetary award."

Just as the FDA, largely sponsored by the food and drug industry, now works for the same instead of regulating and supervising it, so does the U.S. Patent and Trademark Office now work for the patent holders. Or, in the words of one patent examiner: "When I first started here, I was told, 'When in doubt, reject' and to try to reject. Now I am told, 'When in doubt, allow' and try to find a reason to allow."

With the result that all kinds of non-innovative items and simple methods have been granted patents, and litigation--often involving tens of millions of dollars--is going rampant. Some patents might indeed threaten not only the uninhibited development of new technologies but the very fabric of modern society.

Amazon, for example, patented "one-click shopping" (No. 5960411, "Method and System for Placing a Purchase Order Via a Communications Network").

And in 2004, Microsoft was granted a patent for a "Time-based Hardware Button for Application Launch"--in plain English, the mouse double-click (No. 6727830).

Other patents include:

  • The online shopping cart (No. 5715314, "Network Sales System")
  • The hyperlink (No. 4873662, "Information Handling System and Terminal Apparatus Therefor")
  • Pop-up windows (No. 6389458, "Method, Apparatus and System for Directing Access to Content on a Computer Network")
  • Paying with a credit card online (No. 6289319, "Automatic Business and Financial Transaction Processing System")
"The harm these patents cause the public is profound," writes the Electronic Frontier Foundation (EFF) on its website. "Previously, patent holders had only targeted competing companies. These companies have established legal departments and outside counsel and are thus able to defend against illegitimate patent threats. Now some patent holders have begun to set their sights on the new class of technology users--small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar-legal demands, they have no choice but to capitulate and pay license fees--fees that often fund more threat letters and lawsuits."

EFF's "Patent Busting Project" is designed to identify and document such abusive patents and chronicle "the negative impact they have had on online publishers and innovators." The next step is to file challenges to the Patent and Trademark Office, with the goal "to affirmatively invalidate patents rather than forcing technology users to await the threat of suit."

More power to them.

Posted 07-25-2006 9:09 PM by Doug Casey
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