Open Innovation… bang bang bang bang bang
by Vinay Gupta • July 24, 2008 • The Global Picture • 1 Comment
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.
Here are some other thoughts:
From the perspective of a peer-based economies involving digital fabrication – there is still freedom to innovate when a patent is created. Freedom exists to pursue further research and to produce for oneself. Independents can produce goods in a one-off fashion. They can also engage in non-violent resistance by denying to conform to the patent system. They can produce the goods noncommercially in local and barter economies, or they can sell the item noncommercially by private contract. If there is enough of the independent producer digital fabricators – a likely scene in the near future – then the patents cannot be enforced against a distributed swarm. A new pattern of production can emerge – based on downloadable information and zero-entry barriers to production for those who are equipped with digifab facilities.
The above is not an easy solution – because it requires significant numbers of people to: (1), become technologically literate, and I don’t mean by going to school – which typically eliminates inegrated, eco-technological literacy; (2), wean off mainstream funding sources and create new means of funding outside of those where ‘protecting capital’ is a primary concern; (3), acquire a mindset of abundance beyond scarcity and monopoly – to see that there’s enough for everybody; and (4), become involved in digital fabrication – such that this constituency gains a political voice.
As challenging as this is, I think asking corporation to ‘play nice’ is even more difficult.
There is even a deeper issue that informs the viewpoint above – which I think is one that has to be addressed before a lasting solution is attained with respect to the patent issue. It is that of voluntary action.
Currently, coercion is exercised to prevent people from producing patented goods. A voluntary agreement as Vinay proposes is the right way to go. Even though it’s voluntary, it still requires third party resources, and therefore bureaucracies – for enforcement. The digifab proposition does not require third party enforcement – and it is something we should strive for in the long term. Indeed, I don’t think it’s too early to start right now. The focus should be a creative approach – a new ethic of funding voluntary work for the common good – as the deeper societal change – rather than relying on enforcement or policing action for the same end.