The Past and Future of Patents
The patenting of intellectual property is hardly new in written history, dating back to ancient Greece. Anything that is not a trade secret is vulnerable in the public domain, especially in a competivite free enterprise capitalist economy. Whether the patents of yore penned on scrolls and stamped with royal wax seals on the bottom have been considered for the greater good or not has been the subject of philosophical debate over the centuries. Patent legislation in Europe established torts, abolished them due to being unfair to the general populace, then reinstated them after making them more democratic in several countries.
Today the US Patent and Trademark Office performs a vital function in America. It may not be cheap to prosecute (apply and have processed) a patent, and the USPTO strongly advises against filing any applications without legal representation, but at least it is within the means of the vast majority of inventors and especially larger corporations. It may not be a perfect system, but then nothing really is in our democratic republic. Free trade is part and parcel of the liberties we enjoy in this country. Without patents protections, many entities would be crushed defenselessly by competitors that would infringe upon their intellectual property with impunity. The consequences of such actions must be there, and the fines that are imposable are among those.
Considerable capital is at stake in patent wars between mega corporations, the details of skirmishes of which are splashed across the bottom screen crawl text of CNBC and Bloomberg broadcasts. Those who consider commerce to be warfare are proven correct in that arena. Market share is something investors pay close attention to, and stock prices will reflect fluctions of that for any given enterprise.
Software tends to fit into a gray area between copyrights and actual patents. One database product line from the 1980s had its share of troubles, dBASE II, III, IV (from Wikipedia article): Esber had earlier threatened a group of dBASE users who were attempting to define a standard dBASE file format. With this standard, anyone could create a dBASE compatible system, something Esber simply wouldn't allow. But as soon as they were issued the cease-and-desist, they simply changed their effort to create a "new" standard known as "xBase".
Esber had previously decided to sue one of the clone companies involved, then known as Fox Software. By the time the case worked its way to court in 1990, Fox Software had released FoxPro and was busy increasing market share. If the court case was successful, Ashton-Tate could stop FoxPro and use the precedent to stop the other clones as well, allowing dBASE to regain a footing and recover from the dBASE IV incident.
These hopes came to an end when the case was thrown out of court. During the initial proceedings it was learned that dBASE's file format and language had been based on a mainframe product used at JPL, where Ratliff had been working when he first created Vulcan. The credibility of Ratliff was jeopardized by his alternate claims of ownership while at Ashton Tate and then supporting the roots at JPL after he left. All the facts were never sorted out and Ashton-Tate's competitors had a self-interest motivated field day in writing amicus briefs.
When the federal judge reviewed the work of his clerks he overturned his earlier ruling, and decided to hear the case on whether or not Ashton-Tate owned the language. In April 1991, the judge vindicated Esber's decision to protect Ashton-Tate's investment of several hundred million in the development and marketing of dBase, by ruling that Ashton-Tate did own the language. Unfortunately, his earlier ruling had already done considerable damage. Eventually, as part of the merger with Borland, the US Justice Department required Borland to not assert copyright claims in menu commands and the command language of dBASE.[14] This paved the way for Microsoft to buy Fox Software.
Red Hat took another tack in taking on Sun Microsystems with their Unix operating system by going to an open source model. Now that is becoming the favored paradigm, and even Microsoft has created their popular javascript library for browsers, jQuery, which is an open source joint venture. When I was the team lead for the PC development group at Walgreens in 1988, we were able to purchase the C compiler library source code from Microsoft, because we needed it for a specific purpose (for those who are technical and old enough to remember C - a mixed memory model). So, in essence, even though they had their patent and copyright protections in place, they were not guarding the actual source code as an actual trade secret. Coca Cola, on the other hand, withdrew from bottling in India when the government there put the constraint on them of having to hand over their closely kept secret recipe until that restriction was finally lifted.
The question remains: If progress is the raison d'être of technological and scientific innovation, then do legal protections for intellectual property in fact serve the greater good? My book from Bloomberg Press (which is now an Imprint of Wiley & Sons) has been counterfeited and sold online with a different cover design, a fact I discovered when I ran a routine Google search of my name. Should I be indignant at the loss of royalties thereby, or flattered as an author that the title is considered significant enough to boot leg?
Whatever the future holds, nothing can stop the wheels of progress, which have been churning since the invention of the wheel itself.