Starting an anti-patent-abuse appropriate technology political bloc?

[Vinay Gupta]

As I look at all these rocket scientists struggling to navigate the horrific waters of patent law and worst practices, I'm wondering... why has the Sacred Oath gone out of fashion?

Like, really, what this comes down to is three principles which really ought to be sworn in blood by anybody doing this kind of work.

1> I will not permit any human being to be deprived of live-giving technology by the profit motive.

2> Any works that I patent I will make available to others who are engaged in humanitarian activity for free, except where this would breach other contractual responsibilities.

3> I will not use patent law to slow the pace of innovation or service delivery to the needy under any circumstances.

I think that if I could get everybody I'm doing business with to swear some version of these oaths in a serious fashion, my life would be enormously easier. I think I know a lot of other people who feel the same way.

Maybe this needs to be part of the Global Swadeshi movement, or its own thing, a sort of voluntary code of ethics to guide us where the horrific murk of international law leaves us with little support.

Furthermore, I think that if we got a few hundred people behind this, as a bloc, we could shame companies who were violating fair practices with patent and copyright in the developing world, at least in the burgeoning appropriate infrastructure for the poorest area. The reason we cannot do this with open publishing alone is that things which have not been explicitly published may well become vulnerable to patents - a small innovation becomes patented, and now nobody else in the field can use it without exposing themselves to patent liability.

A large group of allied appropriate technology groups with a common stance on that kind of behavior could probably public-relations-bomb any company trying to leech from the open pool in this way as a way of ensuring that appropriate technology remains Free As In Speech or at least is licensed irrevocably as Free As In Beer for non-profits and small, local commercial enterprises.

The last thing that we want is a patent bloodbath at the bottom of the pyramid: people are going to die if that happens. Possibly hundreds of thousands to tens of millions, given a few years. We need to roundly nip this in the bud, keep the patent trolls off our back, and more importantly, the backs of the poor.

[Sepp]

Important point, that of patents.

I imagine the most immediate concern is energy production. There is already a discussion on how to get around the patent laws (or use them creatively) to make sure innovative approaches to energy production are not smothered by the law.

http://peswiki.com/index.php/Legal:To_Patent_or_Not_to_Patent_a_Fre...

An article I wrote years ago proposed that a change in patent law is needed: Establish priority by publication, and ensure that inventors get their dues by an automatic system that collects the royaties, but only in case their invention is being successfully used in commerce, similar to what we have today for authors and song writers.

http://www.hasslberger.com/pat/pate_1.htm

[Lucas]

Use it or lose it, like neurons in a brain? Sounds good. But isn't it what's being done currently?

[Vinay Gupta]

No, right now, you can patent something, and then fail to find funding and sit on the dead patent for 20 years, preventing other people moving forwards on the original idea. Happens all the time.

[Sepp]

No Lucas, you can sit on a patent, as Vinay says, without getting it to market. The worst is, you can also buy a patent from an inventor pretending you are going to produce his gadget, and then file it away never to be heard of again. Companies that are into fossil fuel exploitation quite commonly acquire patents for new energy applications that would compete with their kind of technology, to retard the appearance on the market of the new technology.

This happened so much in the last 50 or more years that we are now - in the energy field - confronted by a real bottleneck. High fuel prices combined with unavailability of cheap alternatives make great business for the fossil fuel guys, but everyone of us pays.

There hasn't been any real progress in decades, perhaps a century. Just think of our cars - they have practically the same motors as those invented by Otto and Diesel in the late 1800's. And even a nuclear power plant is just a fancy way of boiling water to make steam ... to drive a steam turbine.

[Vinay Gupta]

If only we were using your system, Sepp.

Yeah, my main fear is having people walk in and patent everything around a given open technology, meaning that rather than the technology being evolved a step at a time in an open fashion, they basically burn money to grab many of the logical next steps that the system could have evolved in and patent them.

It hasn't happened on a large scale yet, but if it does, it's going to be ugly.

[Sepp]

This is happening all the time to large manufacturers.

A cousin of mine working for BMW told about some patent infringement suits over comparatively small design points. Sharks patent things all the time (the logical next step) and when a company sells big, those guys come out of the woodwork to cash in with patent infringement suits.

[Vinay Gupta]

What I'd hope to do is get some defense against people who want to manufacture things pulling stuff out of the open pools - like if the hexayurt was patented and released under an open license, hexayurt manufacturers would be forced to release any patents they got under a similar license.

As for the terms of that license, I've been thinking hard on it, and I think the critical right is the right to sell to NGOs and Govts. and large companies. If we had a license that said "you can do anything you like with this, but if you are selling to any entity that has an annual income of more than $1m, you need to buy a license from us" it seems like it would allow small companies, local shops and so on to thrive, while preserving the mass markets which the big players want access to.

What do you think of these approaches?

[Sepp]

I think that's a wonderful idea, Vinay. Probably the best would be to get in contact with the creative commons people to extend their system from copyright to patents.

Once it's there and people start to use it, it will be accepted by the courts. It's just a different contract from what's fixed in patent laws. Inventors should be free to use an alternative, why not?

Anyway, provide it and it'll be used.

[Vinay Gupta]

Ok, so there's four steps here - and I'm very glad you like this approach, Sepp - really makes me think I'm on the right track.

1> I think on the legal end we can get help from several sources, including the guy who wrote a lot of GPL V3, Eben Moglen, and possibly the Creative Commons folks also.

2> We need some kind of consensus on what the license should do - one thing is this mutual licensing thing, and the "Small Shops" approach. Are there any other features it should include?

3> We need a group to actually say "we like this license idea, we'd like to see it written up formally and we'll use it."

4> We need some way to finance the defensive patents, which means an agency actually spending time defensively patenting things.

I think all of this is doable, but I'm having a hard time getting people behind the idea, not because they don't like it, but because people are busy, patent law is hard etc.

Do you think if we just get the license written people will use it?

[Sepp]

On your four points, Vinay...

1> I think Creative Commons would be a natural, as they already have a successful project in a closely related field - copyright. Their organization, or a new one to be formed that is related, could do the promoting.

2> Good question - and more input will be needed on this. I have told a few people who might be interested to have a look here. As a first approximation, I would propose that a creative commons type patent should have several options - something like
a) completely free, do with it what you like
b) non commercial use is free, commercial production and sale are as well, but give rise to a royalty to the inventor of ?? per cent of price of sale to the end user.
c) non commercial use free, commercial production subject to license to be negotiated (similar to today's patents).
There may be other nuances to take care of.

3> Most definitely a group to promote the idea will be needed.

4> I don't think we have to defensively patent. All we need is a proper record of publication to prevent a patent of others from being issued or, in case such a patent does get issued, to make it challengeable.

Prior public disclosure of an idea prevents a patent from being taken out on it. So it wouldn't be defensive patenting but defensive publishing.

There is even a company that started to provide such a publication service:

http://www.ip.com/prior-art-database/

[Vinay Gupta]

Defensive publishing only gets us so far, but it is very cheap (the internet apparently counts.) I definitely agree it's the core strategy.

But the problem remains that if I publish A, and then somebody comes along and patents B (a refinement of A) then they can lock that refinement - like if I'd invented the hexayurt, somebody else could have patented the folding hexayurt before I published it, and then I would have been really annoyed but helpless before the law unless I could find some way to break the patent.

I don't what that becoming the story of open appropriate technology. I want us to be safe to innovate.

[Sepp]

I see the main point of concern.

Defensive publishing may be a good solution in this case, as since it's easy to publish your idea, it will also be easy to add any refinements. The publication of an idea could carry also any refinements, published as soon as they are made, leading to a kind of time track of the invention with any refinements the inventor actually thought of.

Someone patenting refinements would have a much harder time, it seems, as patenting is more costly and slower.