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Information Outlook, Feb, 2004 by Suzi Hayes

The academic world tends to fall predictably in most instances on one side of that debate. And the defense world tends to fall pretty predictably on the other side. And the commercial world tends to have a little bit of both, with its interest being generally motivated by protection of intellectual property and commercial interest.

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One of the interesting sidelights of that particular debate is that in this era, a lot of what we do and invent in the commercial world is valuable in a way that was never anticipated by the people who were writing up the legislation for the Patent Office many years ago. In almost all cases, if a commercial company has something that is really valuable, it may decline to patent it, because it turns out that it's actually easier to defend it, to maintain it as a trade secret, than it is to maintain it as a patent. Because once a patent is published, there are so many ways around it. Basically by writing a patent you've given a blueprint to others not only of how to do what you've done, but also of how to find away around it so they won't have conflict issues in the Patent Office.

So here's an example where the 250-year-old technology of how to describe patents and protect intellectual property is just woefully inadequate to the modern era. In fact, until a decade or so ago, it was not even possible to patent an algorithm, which, of course, is the single most important thing you can invent in computer programming.

SH: I bet a lot of people didn't think of it that way. I know that some of us--those of us who worked in the industry--certainly are aware of that.

CL: Yes, if anything is really important, the company just keeps it secret. Mostly what patent portfolios are in the big companies is security against huge lawsuits for infringement of other, unrelated patents. When you see things like the collision that almost occurred between Digital Equipment and Intel a few years ago--they filed patent infringement suits against one another--you see the danger. In that case the lawyers took a look at what was going to happen, took a deep breath, and said, "Oh, my God, what have we done?" And they came to an agreement--they thought better of it and settled. So instead of having it blow up, it was all over in two or three months. And that was smart, but also instructive. The discovery motions would have gone on for a decade; it would have cost them both hundreds of millions of dollars to litigate the case. So now all of the big companies in the industry basically use their patent portfolios for what they call mutually assured destruction. I've literally heard it described in those words. Most of the big companies get into what are called cross-licensing agreements, which essentially ensure that they won't have the lawyers running the company into a decade-long intellectual property dispute with another major company that will drag them both down and kill them.

This happens because patent law is now entirely inadequate for modern inventions, especially in the computing industry. The ability of the courts to decide on issues associated with patent law that are, in today's technology, so complex that, it's brutal even to contemplate is woefully inadequate. You've got judges making decisions about intellectual property issues based on science that it would take them not the three months that the case is allotted, but three semesters just to understand at a superficial level. Judges, for all their education, much less juries of laypeople, none of whom have any hope at all of understanding nanotechnology or NP-Complete algorithms, just can't decide these cases.