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Taming The IP Monster

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

Jonathan Feldman

October 26, 2004

3 Min Read

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 [email protected].

About the Author(s)

Jonathan Feldman

CIO, City of Asheville, NC

Jonathan Feldman is Chief Information Officer for the City of Asheville, North Carolina, where his business background and work as an InformationWeek columnist have helped him to innovate in government through better practices in business technology, process, and human resources management. Asheville is a rapidly growing and popular city; it has been named a Fodor top travel destination, and is the site of many new breweries, including New Belgium's east coast expansion. During Jonathan's leadership, the City has been recognized nationally and internationally (including the International Economic Development Council New Media, Government Innovation Grant, and the GMIS Best Practices awards) for improving services to citizens and reducing expenses through new practices and technology.  He is active in the IT, startup and open data communities, was named a "Top 100 CIO to follow" by the Huffington Post, and is a co-author of Code For America's book, Beyond Transparency. Learn more about Jonathan at Feldman.org.

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