Ideas vs. Inventions

By Kellyn Brown

When Oracle bought Bozeman-based RightNow Technologies in 2011 it was already involved in a long-running lawsuit with Google, alleging copyright and patent infringement over the search engine giant’s Android operating system. The case dragged on and largely focused on Java technologies, which Oracle now owned with its acquisition of Sun Microsystem a year prior.

I watched the case move through the courts, partially because the size of the companies involved; partially because Oracle now had a large workforce in Montana; and partially because I had acquired a layman’s obsession with patent disputes. In May 2012, a jury found that Google did not infringe the patents. For its part, Oracle said it had “presented overwhelming evidence at trial” and appealed the ruling.

Long gone are the days of the cotton gin, a useful machine that revolutionized an industry, created by inventor Whitney Eli and patented in 1794. Today’s patents, and the wars over them, rarely involve tangible objects like engines. Instead the arguments stem from pieces of code and even basic futuristic ideas we had growing up but failed to write down.

There are now big businesses that devote their resources to buying patents and their in-house lawyers to suing companies they allege are infringing them. Often these lawsuits are aimed at the Apples and Microsofts of the world, which, in turn, have filed their own lawsuits armed with their own collection of patents. The two companies actually teamed up in 2011 and outbid Google for the rights to 6,000 patents owned by defunct telecommunications equipment maker Nortel Networks. They paid $4.5 billion.

But at once these lawsuits, critics contend, are stifling innovation by hampering startups; unfairly targeting end users instead of companies; and are obviously frivolous since many of them protect ideas instead of inventions. And I agree. And so should you.

Perhaps no one has covered this topic as well as National Public Radio, which has only fueled my scorn toward the U.S. Patent and Trademark Office (no, I haven’t invented anything). NPR’s latest report was its most infuriating.

The episode features Jim Logan, who in the ‘90s started a company called Personal Audio. It mailed out “cassette audio magazines” to subscribers. It eventually failed, just like cassettes. But Logan dreamed that playlists and audio magazines would one day be downloaded on electronic devices. He tried to build a modern-day MP3 player, but he failed. He patented his idea anyway.

Logan has since sued Apple for allowing “playlists” on iTunes (you know, the ones similar to the mix tapes you made in the ‘80s) and he won an undisclosed settlement. And now he is taking it a step further – threatening and suing podcasters who record their voices on microphones, some of them out of their garages.

“I’m one of the co-inventors of podcasting,” Logan told NPR, even though he contributed none of the technology and little more than an abstract idea to the U.S. patent office, which somehow allowed him to own the practice of downloading serialized episodes to an audio device.

Patents are no longer used to protect intellectual property – at least how most of us know it. They are used as weapons to sue people and corporations to make as much money as possible. Now someone can claim they bought some ridiculous patent (not created the technology) of distributing Wi-Fi and sue owners of hotels and coffee shops that distribute it. This is actually happening and business owners are actually paying rather than lawyering up.

“It took 121 years for us to get the first million patents,” Tom Ewing, an intellectual property attorney, told NPR. “Now it takes, more or less, six years to get another million patents.”

Our draconian patent system is smothering American ingenuity. It’s also making us low-level criminals. I wrote this using public Wi-Fi. And information from NPR was gleaned from its podcasts. Both, apparently, illegal.