The Azimuth Project
Tracing intellectual properties

This page is part of an (blog) article in progress?, written by Nadja Kutz. To discuss this article while it’s being written, please visit the Azimuth Forum.

The idea

This webpage is about the issue of intellectual property, like patents or scientific work. The double meaning of the word ‘property’ is here taken literally. Emphasis will be placed on possibilities of how to mitigate patent problems, especially with respect to environmental issues. In particular the concept of a lockable patent arxive is outlined.

The arXiv

Currently it is rather not recommended to submit many versions of an article to the preprint repository arxiv. The reason for this is that the preprints at the arxiv are regarded as rather final works. It was thus proposed (see e.g. blog post on randform) that the preprint repository arxiv may set up a section where the development of innovations is timestamped and which can be thus seen as a “pre-preprint repository”. This section can be open or closed (“lockable”) depending on the corresponding author(s) decision. Note that the authors decision shall eventually include the possibility to “lock forever”, i.e. to delete his or hers information if these had been locked previously. The deletion of fully public information should rather be possible only in exceptions because here references to the work may have been made and the traceability of information becomes important. Exceptions may include juridicial problems etc. and need to be decided on a case by case basis. Similar proposals can be found at the dicussion forum for discussing the future of mathematics, publishing and software Math2.0, an overview of this issue is on the Azimuth project site Academic publishing.

Such a lockable archive may also be useful for the case of patents or other intellectual property cases.

This shall be explained a bit at the example of patents, since the case of mathematical preprints may be not so common to the general readership.

Patents are developping more and more to be rather an obstacle to innovation than that they further innovation.

One main problem of modern patents is the growing complexity of the involved tasks. For modern inventions one may often need research teams, develop different processes and various inventions may be interlinked. There are meanwhile quite some examples where products are not realized because of possibly unresolvable patent conflicts.

From open the Internet Protocol television (IPTV) forum (OIPF.tv) on the mpeg standards for mpeg video and audio compression:

There are quite a few misunderstandings about the role of the different organizations involved in getting MPEG deployed, notably when patent licenses are concerned. Below is a short clarification of the role of some of the main players.

There is ISO/IEC MPEG. This is the group that makes MPEG standards. MPEG does not (cannot, under ISO rules) deal with patents and licensing. It asks of companies that propose technologies that get adopted into the standard to sign a statement that they will license their patents on Reasonable and Non-Discriminatory Terms (also called RAND terms)…

and

…In other words, there is no ‘authority’ involved in licensing, it is a matter of private companies working together to offer convenience to the market.

In the case of a patent the risk of getting the development costs back is on the side of the developper. If you have a relatively “simple” invention like that of pendulum clock, with rather small development costs then the risk of not getting patented is overseeable. If you however have to pay for a big research team and the development of a technology/innovation needs many years then the loss of for example a patent case may be very harmful. And of course if a single inventor would have had put all his workforce for quite some time into the development of a pendulum clock then the risk of not getting patented could also rather be harmful for that single inventor.

Despite the fact that the risk of getting the development costs back is on the side of the developper patents are often not necessarily an incentive for the developper. In the growing market of outsourcing and Know-How Trading the rights of an innovation are often required to be transferred to others than the original developpers. Depending on the terms of condition innovators may thus be “rewarded” inappropriately. Patent trolls are another problem.

The complexity of patents makes the use of simple patents especially problematic. That is there exists innovations, which development appears rather “easy”. That is in these cases a traceable development didn’t take many years and research teams. Here usually the originality of the innovation is a debated issue. An idea may appear “easy” in retrospective, but the process, which led to its birth may have been long and cumbersome. The originality of an idea can usually be assessed by the number of people who had the same idea at approximately the same time or by for example tests where a group of people is requested to develop an idea within a certain time. Unfortunately there are patents filed, where people even try to patent already existing technology. And there are patents filed, which are so trivial that one can’t really talk about “an idea”, left alone an original idea.

Alone these facts may hamper innovation. The possibility that an invention may turn out to be harmful or dangerous is another case.

But there are more arguments, like that as a holder of a patent you may be in a monopolistic situation.

Due to the possibly high costs and risks of patent development and its possibly monopolistic features the attractivity of “trivial patents” is rather big. That is if a “trivial patent” is issued then the possible gains giantly outweigh the involved risks or costs. The case of trivial patents are thus somewhat comparable to the feature of reserving possibly highly frequented words for websites in internet domain grabbing.

For the case of domain grabbing this feature may eventually be seen by some people as a “competitive sport”, although domain grabbing may have quite unpleasant consequences like for small companies and organisations. For the case of patents -especially in the sector of medicine and renewable energies- trivial patents can however acquire a rather unethical dimension.

For that reason initiatives like the health impact fund and advance market commitments in the sector of health or open design initiatives like the open design alliance or the Open Design and Hardware Alliance were founded.

The health impact fund regards the usefulness of a medical innovation, in particular of medicine as important. From the website:

The HIF would incentivize the development and delivery of new medicines by paying for performance.

ohanda is a platform at which products and product designs can be registered, which are intended for free use. Ohanda tries to find a kind of analog of the creative commons licence for the sector of hardware.

Both approaches mitigate the current problems of patents.

defensivepatentlicense is another approach for adressing the problem of patent trolls.

The open hardware and design alliance is a platform at which products and product designs can be registered, which are intended for free use. Ohanda tries to find a kind of analog of the creative commons licence(which is a license for copyright work) for the sector of hardware.

All approaches try to mitigate the current problems of patents.

A special case are software patents. Software patents are not existing in some countries, however in some countries they do exist. Licences like the GPL licence or http://defensivepatentlicense.com/ or open invention networks are another approach for adressing the problems of software patents.

The rise of 3D printers and other rapid manufacturing devices has been blurring the lines between soft- and hardware, so that it is to be expected that this will affect the design of countermeasures or problem mitigation measures to patents. It is also to be expected that similar mechanisms will take place for the case of wetware and more water-carbon based [cyberware]{http://en.wikipedia.org/wiki/Cyberware} (which in the turn blurry the lines between brain childs and real childs, as outlined in Traceability of intellectual properties and evolution).

A “lockable patent archive”, together with eventually revised patent laws may be another possible approach to mitigate the problems of patents.

A lockable patent archive

A “lockable patent archive” shall be an archive where companies, organisations or individuals may register for archiving the development of a technology. A “finished product” may then evenually be filed as patent. Archiving the process of development, allows to better assess issues of fraud, plagiarism and trivial patents. Note that archiving includes here the provision of time- and location stamps for each “check-in”. It allows to introduce new patent policies, like a cap for patent licences, multiple licenses, registration facility for other licences (like creative commons (see OHANDA)) etc. Note that the time- and location- stamps alone may already be seen as a kind of registration “number” (at least for the time of development) this may eventually easy the process of a licence registration.

Even for more complex products/innovations it may happen that despite long and candid development processes products may still be very similar. Nowadays this would result in patent law suits. Multiple licences could be a way out of this or in other words the patent on something could be shared. Apart from issueing multiple licences one could also think about directly using a part of the price of these kind of “similar products”, which would go directly into paying development costs. That is various companies could for example set up a development cost pool prior to merchandising. However negotiations will here probably only be sucessful if the development is well documented. A documentation about a development process of an innovation would also be interesting for finding out more about the true costs of products.

In this context it should also be mentioned that filing for a patent alone may currently already hamper the further development of a patent (see e.g. the different handlings of expansion of prior art in asia even if the filing inventor is the same.

Such an archive also allows to assess the issue of possibly dangerous developments (like viruses) and what to do about them. It could allow for incentivizing (like via the distribution of different license shares) inventions according to their environmental friendliness. That is if for an innovation an extra effort was made to suggest realizations which enhance the environmental friendliness and safety of an invention, like for example if the construction was further optimized in order to allow for less harmful materials, less material use or for example extra safety mechanisms etc. then this extra effort could be honored. Such an archive would also allow inventors to issue an “errata”, correction or add-on list after publication and to link to other inventions, if found necessary or useful.

Currently the development of a technology can be accompagnied with the help of solicitors. It seems there are/were already commercial facilities which offer an online check-in of IP related files, with claims that this process is related to a notary process (as an example: the german company priormart offers an online check-in of files, however this seems to be no direct notary service, it’s rather costly, there seems to be no legal certificate (?) and as a matter of fact the online submission didnt work, when tried out by author Nadja Kutz). In principle the traceability of an IP issue may be a useful possibility for all sorts of conflicts within innovations and IP issues. However solicitors or the above mentioned online facilities are documenting snap shots of a development and they are usually not sorting according to the type of innovation. A standardized environment could eventually ease the sorting of information, the integration of other (possibly patented) technology and the implementation of new patent policies.

A discussion about the traceability of intellectual properties and its possible relations to evolution can be found at Traceability of intellectual properties and evolution

By looking at this discussion it may also be helpful to document and investigate the success of innovations (up to a certain degree), like wether they were realized etc.

Like as already mentioned above an innovation may be harmful (i.e. in some sense “negatively successful”). It is to be asked wether harmful innovations should be released into the public at all and if under which conditions. This had been discussed in [Traceability of intellectual properties and evolution]].

In this context it should be mentioned that the possible “positive or negative success”, i.e. the impact of an innovation is in some sense already partially evaluated by the fact that patent innovations should be rather “technical and scientific.” That is the possible societal impact of a “machine” as being possibly an instrument of power plays a role in the judgement about patents. Like an innovation in fashion design is unlikely to be patented unless it is for example a certain type of exoskeleton. The possible success or impact of an innovation plays of course also a role in wether an innovation is patented at all. The threshold of a patent being expensive puts however an emphasis on the possible monetary success. Hence for example the innovation protection via patents for the development of a medication which may be extremely useful for a small number of (poor) people may thus turn out to be too expensive, although it would certainly be beneficial or useful in the sense of e.g. the above mentioned health impact fund. The reason for this emphasis on monetary success is of course in some sense linke to the fact that money is related to power.

Not all patents are realized and this is not always due to the fact that an idea was not realizable per se but may be due to other factors. In the briefing paper by Adrien Chapman Reinvention in Innovation Theory and Practice it is thus noted:

Clearly many technologies are never advanced because they are simply technological dead ends and do not provide what their early promise perhaps indicates. Alternatively, ideas may be abandoned as they have no perceived use at the time of their invention. These may provide a rich source of reinventions though identification is difficult as there is often little knowledge about these technologies due to the circumstances around their abandonment.

There are of course also other reasons why an idea may have been abandoned and it may in some cases interesting to find out why. It would also be interesting to compare the rediscovery of inventions to real reinventions (i.e. inventions which are made without knowing about the earlier invention). But of course it is always hard to tell how much information was still “in the air” after an invention had been made public once.

Similar policies as outlined above might be used for the case of socalled Innovation environments?.

category: publishing