A couple of weeks ago, one of our sister publications – Embedded Technology Journal – ran a controversial article called “Let’s Abolish All Patents.” The article made the case that patents (at least in their present incarnation) inhibit progress, stifle innovation, and – in the wrong hands – serve almost the opposite of their intended purpose.
Most of us in engineering have been through the process at least once – meeting with the folks in the nice suits as they speak somewhat condescendingly about our responsibilities as the creators of technology to protect the bank accounts of the organizations who rent our brains. We are patient at this stage because we know that we’ll soon get our turn to speak with equal impatient disdain as we try to explain our highly specialized and technical invention back to these suitors so they can, in turn, attempt to itemize the pertinent aspects of our invention into bullet-points called “claims.” These claims (along with a bunch of nicely-drawn diagrams) typically bounce around the review cycles in our companies for awhile, then head off to government offices where they sit for years before being almost blindly approved. The approval part of the process ironically usually occurs about two years after the patented invention becomes obsolete and irrelevant.
For us, it means that our former employer (the one we left about 18 months after the patent application if normal high-tech tenure times are applied to the averaging equation) will commission a nice walnut plaque engraved with our name and some information about our invention, and that plaque will be placed in the fifteenth position on row seven in a large and intimidating array of similar plaques on a wall in the atrium of building 62-B – in the back lobby area behind the espresso stand. Similarly, page 2 of our resume (the one we’re not supposed to even have according to all the resume books) will now have an additional line with a smart-looking seven-digit number that will subsequently be completely overlooked by every potential hiring manager that ever peruses our curriculum vitae.
While this view is admittedly cynical, it is probably very close to real-world for the majority of the patents that are created these days. These patents hang quietly on the walls. They are never infringed, never defended, often never even reviewed. Many companies even have policies forbidding their engineers from doing patent searches or reviewing existing patents. These odd policies are rooted in the fact that there are more severe penalties for knowingly infringing on patents than for accidentally infringing. The reasoning is – if you’ve never read another patent you couldn’t possibly knowingly infringe.
Regardless of where you stand on the patent issue, there is another dynamic at play here – the rental of our brains and the fruits thereof. An economy based on physical objects is easy to conceptualize. The algebra of supply and demand controls the flow of commodities throughout the populus, and the concepts of property and possession are related by a simple one-to-one correspondence. When we rent out our hands and minds to build an object, that object becomes the property of the purchaser. We, however, get to keep the expertise we developed in the process.
When we rent solely our minds, however, the situation becomes considerably more complex. When you are hired to solve a problem and the solution you create becomes the property of your employer, you have effectively given up the rights to your own expertise. You cannot re-use the methods and techniques you invented later on while in the employ of another company or customer. Taken to the logical extreme, this means that professional experience would count for nothing unless we stayed our entire career with a single employer. In the modern high-tech world, this is rarely the case, so we travel through our careers knowingly violating the spirit of intellectual property while our laws and cultural conventions can do little but look the other way.
In our craft of engineering, it is difficult to navigate the fine lines that separate what we learned in school and from our ongoing self-education from what we develop ourselves as our personal problem-solving method from what is part of a unique solution that we create to a customer’s problem. As engineers, we are trained in basic disciplines like applied mathematics and science, but our primary training is in the art of creative problem solving. Sure, we are taught a variety of “known” solutions to classes of problems, and we practice grinding out answers using equations long since perfected by legions of engineers that came before us. However, applying pre-established formulae is only a small and almost insignificant part of this art – one that is increasingly better relegated to computing machinery.
For example, there are now design automation tools that look at a sequential algorithm written in a language like C and generate hardware microarchitectures that consist of a datapath, a controller, storage elements, and I/O protocols. Within these microarchitectures, these tools can apply established hardware design techniques like pipelining, chaining, resource sharing, and loop unrolling, followed by hardware optimization techniques like logic replication, register retiming, combinational restructuring, and so forth. Taken as a whole, these tools are applying many of the advanced techniques we all learned in engineering school in order to solve a typical hardware design problem. If an engineer applied these techniques and created a piece of hardware to implement a complex algorithm described in C, would that engineer’s solution be patentable? Most of us would say “yes” assuming the hardware design offered some advantages over other hardware configurations presently in use, and if that configuration was not obvious to an expert in the field. Given that, is a solution created by the design automation tool also potentially patentable?
It is difficult to distinguish between problem-solving techniques and solutions to problems. If problem-solving techniques (such as the logic design techniques above) are well known, is it possible that a solution created using just those techniques could still be novel and unique? Does the answer to that question depend on whether man or machine is applying those techniques? Clearly, if we create a design based on a “novel” arrangement of other people’s IP, we can claim to have “invented” something. If an algorithm does the same thing, whose intellectual property is the resulting invention?
One problem with connecting the concept of property to an idea is that ideas are often almost irretrievably connected to the process that created them. If we can’t separate the new idea from the training and experience that went into creating it, we are creating property from the ether.
My wife is a professional photographer and regularly deals with issues of intellectual property in her work. While I believe there is a distinct difference between the patenting of inventions and the copyrighting of artistic creations, the two concepts are obviously closely related. If a photographer takes a camera built by Nikon, sets it on full automatic, goes to a location where there is a sign with the iconic equivalent of “take a picture here,” and presses the shutter button while pointing the camera – as directed – at a structure created by the Walt Disney Company, very, very little of the resulting image was born of the creativity of that photographer, yet he or she is absolutely entitled to a copyright.
Perhaps we should instead all pursue more vigorously the idea of the trade secret. If we have an idea or method we want to protect, we keep it to ourselves. If we need to collaborate, we have to develop a trust relationship with the people and entities with whom we share our ideas. This is, after all, how these things work themselves out in nature. Our attempts to address the problem in a more civilized manner may be brewing nothing but confusion.