Belinda Stronach and Patents

The following is a letter I wrote to Ms. Stronach in response to words she uttered in Parliament regarding technology and patents.

Dear Ms. Stronach,

I am a member of your constituency and an Ontario licensed Professional Engineer. I am currently working at developing new high technology products. Your following words from Hansard on October 25 were recently brought to my attention.

“Mr. Speaker, last week, the World Intellectual Property Organization released its annual report containing a bleak measure of Canada's international competitiveness.

Patents show our strength at turning our research and development into commercial success and indicate where the new jobs will come from.

Right now Japan, the United States, China, Russia, India, Sweden and Brazil all have better records in terms of patents filed. Canada ranks 30th in the world.

Will the government introduce a competitiveness strategy in its economic update and will it include a measure to improve Canada's record of performance on patents?”

I am afraid you could not be more wrong in much of the above assertions, and I would appreciate a moment of your time to explain how in more detail so that you may better be able to help the technology sector through Parliament.

Briefly, patents are a very poor indicator of “our strength at turning our research and development into commercial success”. They can just as easily be an indicator of how LITTLE competition we have in our markets, and a poor patent system can often become a hinderance to research and development and commercialization.

Your words imply that a patent system which produces more patents is inherently better than one which produces fewer. However, any “measure to improve Canada's record of performance on patents” should be focused more on raising the quality of the patents then their quantity. Indeed an improved patent system could easily see the quantity of patents decline, as more “junk” patents are rejected.

The term “junk” patent implies one of very little worth. Unfortunately this is not the case, as the holders of these patents are able to use them to intimidate their competition and extort entire industries. They are very valuable to the holder and a significant burden to competition, entire industry sectors, and society in general.

As a Canadian I am sure you are well aware of the Research In Motion patent fight with an American company called NTP. The patent that NTP was trying to assert was a “junk” patent which should have fallen into the category of “obvious” and been rejected by the patent office. Indeed a US court did finally strike the patents down, but not before RIM had been forced into a half billion dollar settlement and incurred countless court expenses and loss of business.

The US patent office unfortunately is setup to reward patent examiners based on the number of patents they process and award. The patent examiners in turn are motivated to find ways to help people reword their patents so that the obvious no longer appears so. This US patent system is incredibly dysfunctional and acts much more as an impediment to technology development rather than an instigator for it. I have many personal stories I can also offer as examples of this, so the implication of your words that you want to see our system more like the American system I find quite worrying.

Here are a few more illustrations to help make my point. The first is my favourite as it is an example everyone can relate to. The following examples are more technical, but no less obvious to persons trained in the field. There are a great many more beyond these as well.

United States Patent 6368227 – swinging side to side instead of back and forth.
“A method of swing on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other.” (In theory your kids could get sued if they did this in the States) This patent was applied for specifically to illustrate the serious flaws in the US patent system.

United States Patent 5,838,906 - Embedded objects on webpages
“A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects.” This patent covers everything from embedded flash to ActiveX controls to Java applets. It has cost Microsoft and others in the industry huge amounts of time and money to work around this patent which never should have existed in the first place.

United States Patent 7,024,381 No late fee
NetFlix is currently suing Blockbuster for copying their “business method” of not charging late fees to their customers. I believe Rogers is doing the same thing here. If there were an equivolent Canadian patent, then NetFlix could well be suing Rogers as well.

United States Patent 6,188,010 – sound searches
“A method to enable one to search for a song title when only its melody is known.” Just because it hasn't been done before does not mean it is novel. It is only recently that we have had computers powerful enough, and communication media large enough that this sort of this would be viable.

This whole software and business “process patent” thing has gone completely off the rails now with several instances of people applying for patents for story plots, among other absurdities. Patent application numbers 20050282140, 20050272013, 20050255437, 20050244804 are all story plot patents. Which means if any author writes a story with a plot that matches these, they could be subject to litigation for patent infringement.

Protection for Intellectual Monopolies (aka Property) is very much like taxes. They are both generally a good thing and are required, but too much and you will stifle the very innovation you are trying to encourage. More patents does NOT mean a better patent system. In the current environment it likely means a poorer one.

I am always available and eager to discuss these issues if you would like more insight from an engineer who does not see stronger patents as a good thing and has personal stories of how this type of system has hindered his ability to commercialize his products in other countries.

Kind Regards,

Darryl Moore P.Eng