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  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    ~ United States Constitution, Article 1, Section 8, Clause 8

    That simple clause initiated a long scramble to monetize innovation, eventually spawning a motley industry of patent attorneys, trolls, aggregators and consultants dedicated to making innovations in technology and design more difficult. And nowhere is the failure of the patent system to promote the "useful arts" more apparent than in patents for computer software.

    Now proceeding in a San Jose courtroom is what pundits call the "patent suit of the century." Apple Computer has sued Samsung for stealing the shape and other design elements of its iPhone and iPad. Samsung has counter-sued for infringement on its 3G patents that enable smartphones to multitask while calls are in progress. Several billion dollars in damages are at stake, plus of course handsome attorney, expert witness and consultant fees. You know where that money will come from, don't you?

    I don't give a rat's tuchas who wins in San Jose. You can be sure that it won't be the users. I have had it with innovation for the sake of market share and being force-fed vexing features I'll never use. To illustrate, here's a bite of my experience with Apple, a company I now hate to love, even though I have owned seven Apple computers since 1984. Too many, now that I think of it.

    When we bought an iPod Touch several years ago, I synced it with my iMac G5, a pretty good computer that was the last iMac Apple made using PowerPC processors before replacing them with Intel chips (which is what PCs have always used and which Apple used to claim was inferior). Several months later, I bought an iPod game from iTunes and tried to download it to my iPod. iTunes informed me that the iPod needed the new release of the iOS operating system for the iPod before I could install the game. "Fine," I said, I'll do that," but iTunes then told me that my iMac's OS needed to be upgraded from Tiger to Leopard before I could download the upgrade. Next, Apple's Web site informed me that my computer cannot run Leopard because Leopard only supports Intel-based Macs. The same is true for upgrades of apps I have on the iMac that I have used for years. So my quite serviceable computer turned into a glass brick with orphaned apps and a torpid game.

    This strategy is called planned obsolescence. It's why cars tend to get iffy a short time after their warranties expire. It's why it's not worth the money to repair appliances anymore. It's why discount store clothing becomes threadbare so fast. And it's one reason why your credit card bill never seems to deflate.

    Capitalists love innovations, particularly the ones they own. Companies such as Intellectual Ventures, the evil spawn of ex-Microsoft honcho and celebrity chef Nathan Myhrvold, troll for patents and other IP, buying and selling rights to them like real estate. That company has acquired over 35,000 patents, yet none of them have made it into commercial use according to an investigation by the NPR Planet Money Team. Listen to/read that report; it is as irritating as it is enlightening.

    Most software patents are outrageously obvious to software engineers and so broadly written that the same inventions have been patented multiple times. As evidence of the state of the art they are useless – software patents rarely disclose enough to enable others to replicate the inventions. In any event, good developers can generally achieve similar functionality with completely different code. And if that code is made open source, its developer community will make it better and better, no lawyering necessary.

    The quest for software patents resembles a land rush, but there's no there there. What there is, is a gold mine for litigants. According to the Planet Money story, much of the mining takes place in the small town of Marshall, Texas, where dozens of IP trolls (politely called "non-practicing entities") maintain empty offices simply to file patent suits to be tried by the friendly juries of the Eastern District of Texas. (In fact, a software company I worked for was sued for patent infringement in Marshall.) The net result of all this litigation isn't spurring innovation. It's like medieval jousting, with patents serving both as swords and shields.

    On the other hand, as my iPod tale indicates, pedal-to-the metal innovation isn't always a good thing for consumers. It can be expensive, confusing, frustrating and enervating. In a perverse way, perhaps the patent system serves us all by slowing down innovation that would surely accelerate were companies to cooperate rather than sue one another. We might be flooded with even more unsafe, useless and unwanted inventions. But it's still not right to patent non-material things.

    Think of it this way: technologists love to solve problems. Fortunately for them, but not for us, they will never run out of problems, because most of them are side effects or flaws of previous technological fixes. Were it not for innovations like private automobiles, jet planes and air conditioning, we would live more deliberately, might still largely depend on green energy and might not have so many environmental issues. Not that I think we should all inhabit agrarian societies, but I do think that by seeking convenience we complicate and lose control over our lives. And we pay for it in all sorts of ways.

    So I beg of you, judge the value of innovations broadly; whether a producer or a consumer you be, weigh society's benefits, costs, and risks with your own, and not merely in terms of money.

    @image: Cumulative number of patents worldwide (blue area) and cumulative patents in force at each date (red line) as patents expire, 1883-2010. source: World Intellectual Property Organization

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