A patent I worked on about three years ago, issued to an intellectual property investment firm named C2, has been the subject of a successful lobbying effort by the EFF (the essential left-wing of the Internet power structure).  The patent covers Voice over IP technology, and references transport and signaling methods for a telephone system that runs congruently with a data network.

This patent, and several like it, weren’t necessarily held by inventors, as I learned a years back, is not at all uncommon.  Patent investors, who are typically intellectual property attorneys, underwrite the investments in patents like the C2 one, and then derive income from their ownership over the patent certificate, either by licensing technology, by selling the patent, or by suing for damages on infringement of the patent inclusive of the intellectual property.

I know this particular patent and the family of about two dozen dangerously similar patents because I was retained by a San Francisco law firm for about six months trying to help them sort the patents out and translate them into plain-English for some white-haired, Harvard-educated attorney (or judge) to understand.  I still have a copy of the patent sitting in my drawer.

The real problem with this family of patents, which’ve been issued to everybody from C2 to Verizon to Joe Six Pack, is that they all overlap significantly in terms of the processes or inventions they describe.  What’s worse, they all describe the same essential process of packetizing audible information and transmitting over a non-circuit-switched network.  Indeed, these patents aren’t just similar. When you boil them down to their essentials, they’re largely identical.

And this is one problem the Electronic Frontier Foundation is fighting.  If the Patent and Trademark Office is Issuing patents that cover the same process or technology theory to different parties at roughly the same time (all of these patents were either pending or granted from 1988 until roughly 2003), it really makes you wonder if the patent review teams at PTO are operating in independent vacuums, or if the processes described really are too technical for the PTO to comprehend.

The EFF would probably say that the PTO hasn’t been particularly effective since The Flying Nun was popular.  And, to the degree I find it practical, I agree with the EFF.  But I disagree with their operating theory that patent law is more flawed than effective because it stifles innovation.  The GNU/Open Source movement is the shrill cry of software populism, and I appreciate that deeply, even if I don’t believe software “wants to be free”. Haha.

And for all its heroism, Open Source is also the linchpin of poor quality assurance, the opposite thinking of service level agreements, and the lasting symbol of a sort of techno-hippyism that has lost its way while the corporate world, where all this technology is utilized, took GNU’s good ideas and left its mission behind.   That is, for every stifled innovation credited to the PTO, I can name two that occurred because of ownership of intellectual property by motivate, equipped organizations like Microsoft and IBM.   The EFF and the Open Source community are less equipped and less motivated to innovate because their feet aren’t being held to the bottom line fire.

The PTO just needs to get better at understanding inventions.  My idea, put them in the hands of motivated companies that can do something with them, and get the attorneys out of the patent investment business.  If they want to profit from innovation, let them buy stock like the rest of us.