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10/26/2004
08:11 AM
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Taming The IP Monster

It's time to fix intellectual propety laws that stifle innovation instead of encouraging it.

School's back in session, and the inevitable pushback from the summer's freedom has my wife and me re-establishing "the rules" with our children. Much as the kids think otherwise, we designed those rules not to make them miserable, but to raise them to become happy, well-adjusted adults.

Similarly, our forefathers weren't out to make young inventors or companies miserable when they enacted this country's IP (intellectual property) protection system. Indeed, patents and other IP safeguards were created to foster innovation, not squelch it. The system intentionally granted monopoly protection for a limited but fair period (14 years) to give inventors the financial incentive to create what others could later build upon. The problem is that this limited but fair period was defined in the 18th century, when just sending a message from New York to Georgia could take weeks.

18th-Century Thinking

Any industrial engineer knows that as the cycle time shortens, productivity increases. The problem: When 21st-century IT companies with 21st-century efficiencies use 18th-century IP protection, the effect is like a steroid, creating 800-pound gorillas capable of crushing the competition.

These gorilla companies go out and patent everything under the sun, including plain silly stuff (witness Microsoft's recently awarded patent of the tab key to navigate within a browser page). Then they secure patents that attempt to predict improvements upon the core patent in order to prevent anyone else from making those innovations. Why not? The big guys have the resources, thanks to their monopoly protection (which recently has been extended to 20 years). Smaller companies don't have a prayer.

Without IP protection, most commercial inventors would never invent. Surely we don't want to live in a world where only those who don't have to make a living innovate. This group includes the idle rich, but it also includes criminals, especially of the cyber variety.

Currently, the bad guys have the edge in innovation because they don't have to worry about the bureaucratic IP system. They tend to stay two steps ahead of the law-abiding innovators.

Open source has been a marvelous grassroots adaptation of the IP system. It's quick, and it permits the little guy to participate. But open-source groups are constantly at odds with big, patent-happy companies.

Time For A Change

Apache's rejection of the ill-fated, Microsoft-backed "Sender ID" antispam proposal is the latest such clash (see news. netcraft. com/ archives/ 2004/ 09/ 02/ apache_ rejects_ sender_ id_ proposal. html). Both contenders did what was in their nature: Microsoft, in its quest to expand its wealth beyond the gross national product of every industrialized nation, wanted patent provisions, while Apache refused to sign on to a proposal that would have hitched it to restrictive IP rules.

It's scorched earth on both sides, which serves only to stymie an important standard. A modification of current IP rules is essential to keep information-systems providers from suffering this kind of collateral damage.

It's not the juggernaut companies' fault that the petri dish has been filled with steroids--blame the IP system. Although the prospect of yet more legislation gives me pause, the alternative is chaos and/or might making right.

Encourage legislators in your area to think about the intent of the IP system, and to enact meaningful change that permits innovation without stuffing already enormous and prosperous companies. There's a big difference between creating a profitable, sustainable business and creating a monster.

Jonathan Feldman has worked with and managed technology in industries ranging from health care and financial services to government and law enforcement. He is director of professional services for Entre Solutions, an infrastructure consulting company based in Savannah, Ga. Write to him at jf@feldman.org.

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