June 2001   

Morons, Oxymorons, and Technology Patents
Strange goings-on in the world of streaming audio

by PAUL D. LEHRMAN

If you want to see just how totally out of control the high-tech universe is, then go to your favorite Internet search engine and type in the words "bogus patents." NorthernLight.com returns over 250 results -- almost all having to do with companies and their lawyers fighting over the legitimacy of new technology patents. Not over who did something first, but whether the patents should exist at all or not. In the old days, patent fights were about timing: The development of everything from the sewing machine to the television is littered with cases in which one inventor or company claimed he (it was almost always a "he") invented something before some other guy did and therefore was eligible for compensation.

And usually things were reasonably clear-cut: Either someone could prove that they had come up with an idea and used it first or they couldn't. Patent officers and judges could determine, with a certain amount of confidence, when one invention bore too close a resemblance to another, or when someone expressed the main points of an idea -- the concept known as "prior art" -- before someone else did. The whole idea behind patents, like copyrights, was not just to ensure that an inventor could make money from a new idea, but also to publish the details of the invention so that others could build on it -- at the same time creating a reasonable monopoly for the original patent holder and requiring that others who want to use the idea pay a license fee. The patent system was supposed to restrict and regulate competition, not shut it off. But it also had another role: to spread knowledge.

Today, however, companies look at patents in a totally different light. A whole new industry has sprung up in "defensive" patents -- let's take out a patent on this idea, even if we're not using it and may never, just to make sure no one else can. It's become particularly nasty in the software world. Although software patents are illegal in Europe, in this country thousands of patents are applied for every year for techniques like handling e-commerce transactions, compressing images or tracking Internet users' habits. To make matters worse, a lot of these concepts are far from original -- they've just never been patented before. Companies are staking claims on ideas that have been floating around for years and used by many, but that doesn't deter them from demanding royalties on "their" intellectual property.

The rest of this column, along with 56 more, is now available in The Insider Audio Bathroom Reader, published by Thomson Course Technology PTR.

Copyright ©2006 by Paul D. Lehrman