Jane Wakefield: The Dickensian world of patents

What the dickens are we going to do about the intellectual property disputes that are set to create a new courtroom drama?
Written by Jane Wakefield, Contributor on

Tech firms are losing value by the day and the promise of what they might achieve is no longer enough to keep their share price riding high. Clinging to the vestiges of the dot-com bandwagon, they are looking around for a new way to make money. Intellectual property will be central to this and, while intellectual property fights are unlikely to attract the same audience as Mike Tyson, expect a bloodbath nonetheless.

Intellectual property is fast becoming tech firms' most valuable asset, but it is incredibly hard to judge a company's worth based on IP. This has already dragged content into the courts, most famously by the music industry in its lengthy copyright battle with Napster. The file-sharing firm famously offered the music industry a billion dollars for a year's worth of music, an offer that was rejected. In a culture that is reaching for the law courts to settle disputes as often we used to reach for the phone, expect IP to appear in court more often than Jeffrey Archer.

"Information" is the new buzzword that is providing politicians and economists with unsubstantiated evidence we are about to undergo a radical shift in the way we live. So Gordon Brown tells us we are moving to an information economy and Tony Blair likes to remind us that we are living in the information society. But there is going to be a price to pay for all this important information.

While we might look around and around us in the search for this fabled information zeitgeist, those companies that own the building blocks of this content-rich and dependent society already recognise that their assets are very valuable indeed.

So much so that patent offices have never been so popular. According to the US Patent and Trademark office 2000 was a record year for registering patents with IBM being the brainiest and most innovative of all with nearly 3,000 patents bagged during the year. Patent is not one of the sexiest words in the dictionary. Up until a few years ago I associated it only with dodgy knitting patterns from the 1970s but now it is set to become a word that can inspire dollar signs before the eyes of those who have registered them and horror before the eyes of the also-rans.

While a patent discussion is likely to inspire only yawns and bouts of snoring among the uninitiated, within the close-knit and exciting world of invention, patent has always represented the end of the rainbow, when the time spent working on your madcap windup radio is finally vindicated, signed, sealed and almost delivered. That rather old-fashioned process of invention and patent is all about to change as patenting becomes a very 21st century preoccupation.

Which is weird as I have always viewed it as rather quaint and old-fashioned. I once had to phone the Patent Office in London (not unfortunately to register a great new invention but to enquire about someone who had) and really got the feeling the office had not changed since Dickensian times. I imagined it full of clerks in half-moon specs entering new inventions into leather-bound ledgers with quill pens while a large clock ticked slowly on the wall.

And that is not all that resembles Dickens. In his books people seemed to spend an awful lot of time hanging about either inside or outside courtrooms waiting, sometime for years, for other people's wills to be decided and their fortunes to be either made or broken. Legal disputes of this kind seemed to epitomise a certain class of Dickensian London. The patent dispute currently raging and looming ahead for some time will be the 21st century equivalent of this legal hell so graphically recreated by Dickens.

BT gave everyone a good laugh last summer when it claimed it had invented the Internet and everyone owed it lots of money. It submitted a patent for hyperlink technology which it found during a routine clear-out, dusted off and then prompted outrage in the rest of the industry by claiming that because of it anyone using hyperlinks owed BT a little extra when they paid their quarterly phone bill. Most commentators suggested that this was a last desperate ploy by an incumbent mired in debt to find a new way of making money. I suggest that in its next clear-out it would be as well off looking down the back of the sofa for some discarded pennies for all the money it will make out of its ludicrous patent claim.

All has gone quiet on that front in recent months. Presumably a representative of BT is currently standing round some Bleak House style courtroom while a judge called Mr Pigglethorpe dusts the cobwebs off the documents. Legal battles in both Dickensian and modern times take an extraordinary amount of time so expect a verdict by 2037.

BT is not the only one that wants to make some money out of patents. Now the open source community wants a piece of the action, using intellectual property as the latest weapon in its fight to make software freely available to everyone. In a meeting planned for the summer, open source advocates intend to ask IBM, HP and other companies that are happy to take a slice of the open source pie for some of its nice patented software back for dessert.

As author of the Open Source Definition, Bruce Perens is the first to admit it could go either way. The great and the good of the software industry could ask the open source gurus to come in, make themselves at home and help themselves to some cookies and a selection of intellectual property and while they are there, why don't they help themselves to their wives, houses and cars as well. Or they could draw the curtains, hide behind the sofa and pretend they are out on the day the penguin heads come to visit.

While BT and Open Source's fight to get a piece of the intellectual property action may seem patently absurd, it is not as mad as some of the ones that have succeeded.

Patenting is getting rather silly and the UK, EC and US are heading for an almighty bustup over the issue as people attempt to patent ever more ridiculous ideas. In the US the definition of what constitutes a patent runs beyond the old-fashioned idea of inventing something to what is described as a "business process". So Amazon was allowed to patent its 1-Click technology which allows revisiting shoppers to purchase items without having to re-enter personal information, a technology which critics argue is reflected by thousands of e-commerce sites. Another company is attempting to patent voice-enabled technology, potentially meaning any future speech technology firm will have to pay out royalties.

This will mean that innovation within small firms will be stifled by the big boys. More worryingly, if, as the EC is keen to see, business process patenting is adopted in Europe, all European firms will effectively be paying an "ideas tax" to US firms who have jumped on the patent bandwagon beforehand and registered some or other business concept.

The whole patent issue is about to take a more sinister twist as the human genome project reaches completion and companies rush to register "cures" based on specific genetic needs. The result is pretty much that of reducing the human condition to a series of numbers in a patent office's ledger.

Patents have never been so lucrative.

Personally I'm going to get in there while patent madness is still raging. I'm off to register my "switching on the PC" patent so that in future anything that anyone writes, buys online or otherwise does with a PC will be an infringement of my intellectual property and everyone will owe me a big fat royalties cheque.

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