Is IP another bubble about to burst? A view from another civilization. | Opensource.com

Is IP another bubble about to burst? A view from another civilization.

Posted 16 Dec 2009 by 

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As a child growing up in India, one of the first things I learned is a hymn to Saraswati, the Goddess of Knowledge, which says that:

Wonderful is your gift of knowledge
the more we share, the more it grows
the more we hoard it, the more it diminishes

As a grown-up living in a globalized world, I am constantly bombarded by the the term, “intellectual property.”

Policy makers keep saying that India should create more IP. Countless seminars extol the virtues of IP even as patents are granted for “Method for swinging on a swing,” "Method for Concealing Partial Baldness." In the computer industry, patents are routinely granted for things that are obvious and have been known for years. Things have come to such a pass that even an industry veteran like Andy Grove was forced to say that,  “The true value of an invention is its usefulness to the public. Patents themselves have become products. They're instruments of investment traded on a separate market, often by speculators motivated by the highest financial return on their investment....

“The patent product brings financial derivatives to mind. Derivatives have a complex relationship with an underlying asset. While there's nothing wrong with them in principle, their unfettered use has damaged the financial services industry and possibly the entire economy."

“Do these patent instruments put us on a similar road? I fear our patent system increasingly serves those who invest in the patent products.” When a veteran like Andy Grove becomes paranoid, you and I better watch out!

Patents were meant to reward innovation, so the question is, "How did we lose our way?"

The current model of trying to "propertize," "privatize" and "commoditize" knowledge comes from a very mercantile, reductionist model of treating knowledge. That may be OK for other countries, which have "intellectual propertized" their knowledge and hold the balance of power in IP Rights, but not for India which has had a long, rich tradition of free knowledge cultures like yoga, ayurveda, mathematics and many other disciplines. It would not be far-fetched to say that many Indian traditions place a moral imperative on sharing knowledge.

One of my favorite stories illustrates the importance accorded to the sharing of knowledge. After the brutal battle of Kalinga, the Emperor Ashoka was so overcome with remorse that he renounced bloodshed and embraced Buddhism. As part of his penance, Ashoka went to monasteries across the country. At each monastery, he would leave munificent donations of gold coins. At one monastery, the emperor left behind one solitary gold coin. When his perplexed followers asked him to explain, Ashoka said that the abbot of the monastery was a great man but he did not share his knowledge with others.

This is a deep-seated ethos that is thousands of years old. This is the ethos that created open knowledge traditions like yoga, ayurveda etc, that are freely used by all. However, when India seeks to use "their" "intellectual property" (allopathic medicine, software and business method patents etc.) we are told, "pay up or else...." Talk about an unequal exchange!

The contrast is best illustrated by what happened with Bikram Yoga taught by celebrity yoga teacher, Bikram Chowdhury who makes a fortune teaching yoga to Americans. Bikram copyrighted a series of 26 postures and two breathing exercises practiced in a room heated upto 105 degrees Fahrenheit. Note that Yoga is a body of knowledge which has been free from copyrights, patents and "intellectual property" for more than 2000 years. When asked why, Bikram said that he sought legal protection because "it's the American way."

Each society evolves systems that suit its own needs. Most of India's traditions of knowledge spring forth from a spiritual base whereas America's treatment of knowledge has a mercantile bias. This is not to pass a value judgment on either. The problem arises when, in a globalizing society the two systems clash and are unable to harmonize with each other.

Sadly most of India's thinking around legal protection of knowledge has been "derivative" in nature, a shoddy cut and paste job from the "mature IP systems" of the West. However, as the Bilski case shows, even these "mature IP systems" are having second thoughts on how they treat knowledge, or in this specific case, business methods. As I have argued in my previous blog entry, "The Practical Problem with Software Patents," the litigation-ridden path followed by US in granting software and business method patents is something India must avoid at all costs.

I could go on and on, but let me just end with one small piece of evidence. As I mentioned earlier, I have grown up in an Indian tradition that believes that knowledge grows by sharing. Does this wisdom hold true in the Internet era?

In September 1991, Linus Torvalds released 10,000 lines of code for building an operating system, under the General Public License. The GPL license encouraged people to take this 10,000 lines of code, modify it and share the resulting improvements with the rest of the world. A recent study by the Linux Foundation estimated that the code base for the Fedora 9 Linux distribution is now 204 million lines of code!

This is one of the finest examples of Collaborative Innovation that has been made possible by the growth of the Internet. With 1.4 billion people connected to the Internet and another 600 million set to join up in the next two years, the Internet is the greatest collaborative platform in the history of mankind. The attempt to "propertize" knowledge in the Internet era is doomed to fail. Instead, we will see knowledge returning to its rightful place in the commons and the open source principles of collaboration, community and the shared ownership of knowledge being applied to thousands of disciplines. As the commercial distributions of Linux demonstrate, even when knowledge lives in the commons, it is possible to build profitable business models around it.

When we look back on our times, we may find that the term, "Intellectual Property" has taken its place along side another archaic term, "Horseless Carriage." Both were attempts to impose metaphors of the past on the future. And the folly of our times is that we treat inexhaustible resources like knowledge as finite resource and treat finite resources like oil and forests as infinite resources. The sooner we turn these attitudes around, the better it will be for the future of mankind.

Venkatesh Hariharan is Corporate Affairs Director (Asia-Pacific), Red Hat.

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114 Comments

CustomDesigned
Open Minded

If you are building an oil refinery (scratch that, the US hasn't done that for a while), if you are building a nuclear power plant (scratch that - haven't done that for a while either), if you are building a semiconductor fab (there we go), you first search applicable patents, and license them - because it saves you time and money. This is how patents are supposed to work.

If you are building a software application, the industry best practice is to NOT search for patents, and in fact, make sure the programmers haven't looked at any. This is because the patents are useless, don't save you the tiniest bit of time, and damages are tripled for knowingly violating one - and every software application is guaranteed to violate lots of them. In addition, every big company files as many stupid software patents of their own as they can - to have a countersuit if some lame-o sues them over a stupid patent.

This MAD policy works for big companies, but small companies and individuals are out of luck. In addition, even big companies are vulnerable to patent trolls - who can't be effectively counter sued because they don't have any actual products (that would be violating some stupid software patents of their own.).

So tell me again how *software* patents are encouraging innovation?

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Natanael L

"if you are building a semiconductor fab (there we go), you first search applicable patents, and license them - because it saves you time and money. This is how patents are supposed to work."

If the costs aren't huge (all patent related costs included), if it's easy to find applicable inventions and the patent database ain't full of crap, then it's a sane solution. (And if you can keep the trolls away.)

If it's about the current patent system or nothing, I'd go with nothing. But that's my choice. That's why I love free software and the GPL and Creative Commons.

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Roy Langston

Stuart Gathman wrote:

"If you are building a software application, the industry best practice is to NOT search for patents, and in fact, make sure the programmers haven't looked at any. This is because the patents are useless, don't save you the tiniest bit of time, and damages are tripled for knowingly violating one - and every software application is guaranteed to violate lots of them. In addition, every big company files as many stupid software patents of their own as they can - to have a countersuit if some lame-o sues them over a stupid patent."

It's not just software where innovation is being blocked by the patent system. I know, personally, one of the world's top optical switching engineers, who led the team that designed most of the switches the Internet works on, and whose name is on dozens of patents. He is not allowed even to READ competitors' patents in case it becomes necessary to defend a patent lawsuit. He now spends most of his time not designing switches, but fending off patent lawsuits.

This is madness. The intellectual property system, like slavery, is and always has been just evil, and that fact should now obvious to anyone with a functioning brain who does not make their despicable, parasitic living from it.

If you don't believe it, start reading:

http://levine.sscnet.ucla.edu/general/intellectual/against.htm

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gdavidrath

Excellent article! Thanks!

Another example of how India has been ripped off is in terms of traditional farming practices. For thousands of years, Indian farmers developed innumerable strains of grains. These have been taken to the west, patented and resold to India. So Indian farmers must pay every season for what their ancestors developed. For more information read Vandana Shiva (Stolen Harvest: The Hijacking of the Global Food Supply, South End Press, Cambridge Massachusetts).

I'd suggest that knowledge (like grain and Open Source) should be treated the same way as common-law marriage: couples who have lived together for years are married in the eyes of the law, even though they never applied for a marriage license. IP patents should be granted only when applicants can prove that their work is indeed groundbreaking, and uniquely their own.

In short, India should demand compensation. Unfortunately, when politics and billions of dollars are at stake, the masses tend to be disenfranchised.

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Contrarian

"For thousands of years, Indian farmers developed innumerable strains of grains. These have been taken to the west, patented and resold to India."

No they haven't.

This is the problem with well meaning but superficial do-gooders. The facts get in the way of their pink balloon reality. Before spending an ounce of intellectual or emotional energy in the philosophically bankrupt "traditional knowledge should be protected" debate, you need to learn the facts and read and understand the arguments on both sides. Then when you take a factually-supported position the rest of us in the debate will take what you have to say seriously [and may, of course, still disagree].

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Natanael L

What do you say about the various DNA patents? I guess you've heard of them already.
Aren't they the same thing?
Personally I wouldn't be surprised if "ancient" variations of plants has been patented for pure profit.

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Roy Langston

Contrarian wrote:

> "For thousands of years, Indian farmers developed
> innumerable strains of grains. These have been taken
> to the west, patented and resold to India."
>
> No they haven't.

Yes, they have:

http://www.guardian.co.uk/science/2004/jan/31/gm.food

Apologists for privilege and injustice always lie. That is a natural law of the universe. There has never been an exception to that law, and there never will be.

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c.hermansen
Newbie

Ok I was going to drop off the end of this but gdavidrath's post is too interesting.

A similar story with stuff taken from the new world (chocolate, tomatoes, peppers, potatoes, etc). Nice book - "Indian Giver" - summarizes this well.

Ownership of IP is complicated, because IP is complicated. Who invented / discovered X? Who knows? Maybe the person who filed the patent; or maybe not.

Maybe there's another mechanism that would work better. I don't know.

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sinaisix

"Rejecting the fact that creators are motivated by financial reward is Pollyanna school girl fantasy. "

That about sums it all for me. All the proponents of the mean, inhuman barrier called IP are simply driven by greed to commercialize and 'productize' every single thing on this earth.

They are blinded by the fact that the only way knowledge grows is when it is shared as is rightly quoted in the beginning of the piece.

They fail to see any other argument that has not the word money in it.

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Stuart Gathman

"Rejecting the fact that creators are motivated by financial reward is Pollyanna school girl fantasy. " (I realize sinaisix is just quoting.)

I would go further, and claim that true creators are almost *never* motivated by financial reward. This is why so many genius artists, musicians, and inventors are dirt poor. Those who are not poor, have a partner or patron. (Or like DaVinci are born independently wealthy.)

Thomas Edison is a good example. He wanted to invent. His partner, JP Morgan (did I get that right?) was interested in the money. Together, they made a team. Without Morgan, Edison would have no lab and no assistants. Without Edison, Morgan would have no inventions.

By effectively outlawing innovation, software patent proponents are killing the goose that lays the golden eggs. (It is impossible to write code without infringing on software patents.) Us creative types *need* money types. BUT, the money types need to let go of self-destructive greed that demands they control *everything*. Let us creatives create, and we'll let you have most of the money. We just need enough for food, clothes, shelter, and tools.

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Knut

The US "Patent" regime may come tumbling down, since it based on the assumption that all inventions are first made in the US. For years, it was not permitted to file software patents outside the US, since the written word and art is protected by the Bern Convention. During this period, the American companies filed patents that remain undisputed, and license fees are claimed for these. These are invention fully documented outside the US and protected outside the US. These is differ from the DNA technology ruling.

Understand that to take a yardstick, paint it pink and cut it at 100cm does not give you the right to "patent" a Pink Meter. However, because of incompetence and ignorance, patents have been awarded for even approved standards that existed outside the US.

You can ask for a "patent" to be annulled if you have evidence that what was "patented" was publicly available to everyone the moment the patent was applied for. Now "publicly available" means that it has been described e.g. in newspapers and media, including the Internet. It is the responsibility of the INVENTOR to ensure that the filing is original, and not the Patent office. With the existing search technology, there is no excuse not to have found that others had come to the same a long time ago. But the Patent Office does not have the skill and competence to complete your filing.

So the US software patent regime may come tumbling down if someone bothers to contest it. The reason for not doing it is the VALUE. There is no value in contesting it unless the "patent" is causing harm, such as hinder development. When we stand to gain more by toppling the regime, it will collapse. The collapse is to be blamed on incompetence and greed. The lawyers are then the "cleaners", they organise, measure and compare, and can contribute to identify what "we" have of values that can be claimed compensated.

To publish does have a value, and should stop others from being able to later call it an "invention" and claim a license fee. If it does not - the "patent regime" is corrupt and will collapse.

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Knut

The US "Patent" regime may come tumbling down, since it based on the assumption that all inventions are first made in the US. For years, it was not permitted to file software patents outside the US, since the written word and art is protected by the Bern Convention. During this period, the American companies filed patents that remain undisputed, and license fees are claimed for these. These are invention fully documented outside the US and protected outside the US. These is differ from the DNA technology ruling.

Understand that to take a yardstick, paint it pink and cut it at 100cm does not give you the right to "patent" a Pink Meter. However, because of incompetence and ignorance, patents have been awarded for even approved standards that existed outside the US.

You can ask for a "patent" to be annulled if you have evidence that what was "patented" was publicly available to everyone the moment the patent was applied for. Now "publicly available" means that it has been described e.g. in newspapers and media, including the Internet. It is the responsibility of the INVENTOR to ensure that the filing is original, and not the Patent office. With the existing search technology, there is no excuse not to have found that others had come to the same a long time ago. But the Patent Office does not have the skill and competence to complete your filing.

So the US software patent regime may come tumbling down if someone bothers to contest it. The reason for not doing it is the VALUE. There is no value in contesting it unless the "patent" is causing harm, such as hinder development. When we stand to gain more by toppling the regime, it will collapse. The collapse is to be blamed on incompetence and greed. The lawyers are then the "cleaners", they organise, measure and compare, and can contribute to identify what "we" have of values that can be claimed compensated.

To publish does have a value, and should stop others from being able to later call it an "invention" and claim a license fee. If it does not - the "patent regime" is corrupt and will collapse.

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UberStudent

> "The patent product brings financial derivatives to mind."

As well as the hoards of, well, I'll call them "domain whores", who years ago bought up many thousands of domains likely to become the home tomorrow's entrepreneurs - entrepreneurs of the sort who actually produce something useful to society.

I don't know about you, but I've discovered it simply chilling. If you want to begin a great new thing, or several great new things, more than likely the domain has already been bought and packed with spam ads, and the "owner" wants 100%-plus of your seed money just to hand it over.

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Tadepalli

Beside undeserved patents, we have been witness to a disconcerting trend among corporates to "trademarkize" every commonly and conventionally known word/ phrase or sometimes even alphabets which they never invented or coined. I feel, like Geographical Indication, there ought to be some international regulation on monopolizing parts of a language.

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Venkatesh Hariharan is Corporate Affairs Director (Asia-Pacific) at Red Hat. In this role, he works with industry, academia, government and the community to accelerate the growth of the global open source movement. In 2006, he was awarded the "Indian Open Source Personality of the Year" by the organizers of Linux Asia 2006.

Hariharan is a former Executive Editor of Express Computer and the first
Indian to be selected for the prestigious Knight Science Journalism

Should I use a permissive license? Copyleft? Or something in the middle?