Apathy Sketchpad

I’ve been reading this very interesting article from CNN Money. Essentially, for those who don’t want to read it, it’s the story of Microsoft’s patents and how Linux software may-or-may-not infringe them. Microsoft say it does, but can’t sue the company that makes it because there isn’t one. so they went after companies who distribute it, and struck a clever deal whereby Microsoft give them lots of money. So the crazy man who runs the Free Software Foundation write a special clause into the license that made everyone very confused and Microsoft say it doesn’t affect them, but if it does then there’ll be a lot of trouble when everyone sues everyone else and the “patent cold war” heats up. (It all makes a lot more sense if you read CNN’s version.)

But this is all happening because people do not listen to me when they decide policy. I know how to fix this problem, or at least how to stop it recurring.

It came to mind when an equally crazy company decided they would sue Nintendo because their Wii controller vaguely resembled a glorified trackball they made. And equally when Sony removed the rumble feature from the PS3’s controller amidst accusations that it infringed someone’s patent. It seemed fairly clear to me that these cases, like Microsoft, are akin to (but far worse than) those people who didn’t launch civil suits against that rapist until he won the lottery and suddenly had a lot of money they could get their mitts on: they were quite happy to let these people spend lots of very valuable time and money developing products but the moment they achieve success, they leap in with a court case to stop them. It’s unethical. (The converse argument is that there’s no point suing them unless they’re successful, but I don’t think that’s a very compelling argument. That’s why I put it in brackets. Brackets aren’t compelling.)

Now trademark law has a way to stop this. In trademark law, you must defend your trademarks. If you let someone use it, unchecked, then other people might start. And before you know it, your valuable trade-name has become generic. Obvious examples are Hoover, Xerox, and Sellotape, which people use to describe all vacuum cleaners, photocopiers and sticky tape respectively, but while they demonstrate the point they’re legally still protected. A better example would be escalator, aspirin, pogo, gramophone or linoleum (a list I pulled from an article I will link in a minute). It tends to happen if someone uses a stupid slogan like “If it’s not an Eastman, it’s not a Kodak” — you probably have no idea how close we came to using “kodak” as the word for cameras, at which point Kodak would have lost all exclusivity rights to the name. That’s why Google hate people using its name as a verb. Even if they can’t stop people, the fact they try is very important, legally.

I think that would be a brilliant thing to introduce to patent law: if a company, group, or individual infringes your patent, and you do nothing about it, and it is reasonable to suppose that you knew about the infringement (effectively, if you don’t actively try to protect your patent) then you lose it. The idea becomes “generic” and the property of the masses. (I would assume that this would have to apply to future patents, maybe kicking in some time later for currently existing ones.)

I think this would stop this kind of “patent sniping” and instead we’d see a much healthier “patent whack-a-mole” where you found out the day you went on Dragon’s Den that your invention had been done before, instead of the day your bank roll acquires that all-important seventh digit. Also, I think it would cut down the number of stupid patents that are applied for — if you have to fight for them, and you’ll have to pay for the fight should you lose, why would you bother filing them at all? Simply sending out threatening letters wouldn’t cut it: if you can’t defend it in court then it would count for nothing — which is the system we’re supposed to have now, except that people get these patents and instead of suing just reach pointless licencing agreements to make it look like the patents are enforceable.

There’s a good chance that I’ve missed something that would be obvious to any vaguely competent lawyer. If so, do please tell me what it is, because I can’t see how this would be anything but wonderful.