There’s just no way around it – patent is broken. I’m writing up a set of docs right now, and it’s clear that trying to tease apart what might have been patented before by other people, what’s common knowledge, and what’s potentially material for a patent pool is just impossible. It’s a question that, in the real world, probably costs $50,000 or $100,000 to answer definitively: patent lawyers and a court case, and whatever’s seen as true at the end of any appeals process is true. For that country.
In short, it’s all a matter of legal opinion, of judicial rather than technical reality.
That way lies madness.
This inherent paradox: that the GPL rests on the control of code given by copyright bites us in the ass hard on patent – patent’s so utterly obnoxious compared to copyright that if you try and base an open IP effort in patent law, the result is so expensive and top heavy that it’s hard to imagine it remaining open in any significant way at the end of the day. Every patch of ground you want to defend as open in a GPL-style fashion costs you $20,000, vs $0 for opening it in a public domain style, which leaves no defense to “parasitic patents” which use the work in the open pool and return nothing to it.
Fundamental problem: copyright doesn’t cover *how* – doesn’t protect ideas, only expressions. Patents (can) protect ideas, but they’re expensive and uncertain: comparing expressions to see if they are equivalent is easier than comparing ideas to see if they are equivalent, and that leads to an entire architecture for trying to formalize the expression of ideas in a way which makes it feasible to crunch them through a legal process that looks for overlaps.
In short, these systems are really unsuited to the rapidly moving open innovation environment in hardware. Copyright just doesn’t reach everything, and patents are too heavy. Without either mechanism applying, all that’s left is public domain and publish as fast as possible to stop some heavy corporate player patenting the hell out of everything around a public disclosure.
The GPL works because of it’s replicating nature: you place your work under it, and everybody who wants to modify your work for their purposes has to abide by your wishes – the rule of copyright is the origin of that power, to require your downstream users to behave a certain way. What we really want for open innovation at the bottom is freedom to continue to innovate, to change the game, without the fear of aggressive patents by corporate entities removing our freedom to continue innovating.
It’s not a big problem now, but if we don’t address it, in the long run we could see the same kind of bloodletting we see in the world of medicine and drug design, where millions of people die because patents empower drug companies to keep prices artificially high.
And how do we protect the capital which allows people to spend years working on a drug, or on a solution? How do we make it profitable to solve humanities basic problems…
I think we need to consider punching a hole in the international patent regime for bottom of the pyramid work – a statement of professional ethics which requires companies not to abuse patents and then we get NGOs and governments to require companies they buy BOP products and services from to be signatories to that agreement. I don’t know what that agreement should say, but without it, this whole field is like juggling knives – we haven’t had a serious crisis yet, but it’s only a matter of time until somebody gets seriously screwed.