Intellectual Property in the 21st Century

David Eagle asserts that a system of laws oriented toward protecting industry may cost America the lead.

Patent Law is Broken

Patent laws governing software are a mess. One day in July, the United States Court of Appeals for the Federal Circuit (the penultimate authority on software patents in the United States) upheld a patent for a program which performs a financial transaction. Less than a month later, they struck down a patent that describes a method of using a computer to manage a life insurance policy. These applications operate in the same way at the most fundamental level. That is, they both require a computer to perform mathematical calculations. One should not be valid and the other invalid. An excellent piece by Tim Lee at Ars Technica describes this situation in greater detail. Tim says, “At root, the judges of the Federal Circuit appear confused about how computers work.” (1)

Because the Federal Circuit has no clear guideline for upholding or striking down software patents, they are writing conflicting judgments into law, and providing no consistent guidance to the US Patent and Trademark Office. As a result some truly ridiculous and crippling patents have been issued, like 5,838,906, which seems to be a patent on “Interactive Websites”(2). Read broadly enough, this would apply to almost all websites.

The company that holds this patent, Eolas, won five hundred and twenty one million dollars from Microsoft in 2004 after suing them on the grounds that Internet Explorer (Specifically, the ActiveX component) violated the patent(3). In 2012 they tried to use the same strategy to sue most of the Internet (Adobe, Amazon, and Google, among others) for one billion dollars. This lawsuit was dismissed in the first phase when the jury found the claims of the patent to be invalid(4).


Insufficient Remedy in Copyright

The other arm of law designed to protect creative invention, copyright, is also ineffective when it comes to protecting software. While copyright law has a longer history of protecting non-physical creative works (like films, music and literary works) than patent, it is designed to protect the expression of an idea, and not an idea itself. In order to seek protection under copyright law, you must be able to prove that the thing which you seek protection from is infringing on the actual expression, and not just the concept.

This is why two similar articles by different writers, expressing the same viewpoints, are generally not infringing. The viewpoints may be the same, but the “substantial literary expression” is different, and is what copyright protects. A copied article being displayed on a commercial website without permissions is more likely to be infringing content, but even this isn’t a slam-dunk.

In the arena of computer software, litigation for copyright infringement is complicated. The plaintiff must prove that expression is being infringed, and a piece of software is often much more nuanced than a piece of literary expression. There is no clear guideline on what percentage of the expression in software must be demonstrably copied in order for the work to be infringing. In fact, there’s no guideline on whether “expression” in software describes art elements, aspects of application interaction, or User Interface elements.

Both patent and copyright are also broken in one more, extremely important way. These systems do not protect independent developers as well as they protect large corporations. Computers have created a new ecosystem, in which a single person working diligently can create a product with mass appeal that large corporations envy, and may have considerable incentive to copy.

In order to be effective in this brave new world, patent and copyright systems must be able to protect an individual from a corporation. The current legal process which must be followed to invoke these protections involves expensive litigation, and in spending money, corporations have always, and will always have the upper hand. Increased corporate litigation will have a chilling effect on individual innovation.


Affecting our Future

It is becoming increasingly clear that the next superpower will be the country that can attract technical innovators. A place where people can create without fearing prosecution will draw geniuses and ride to greatness on their shoulders, more swiftly than the United States did in the late 19th and early 20th Centuries, because we are only just entering the information age, and we’ve barely scratched the surface of what that means.
In the future, material objects will matter less and less when compared to the ideological and technical frameworks which enable us to interact with the vast garden of information and meta-information that we have spent the last 20 years seeding.

The most powerful nation will not be the nation which builds your cars, but the nation which protects and attracts the engineers who create and manage the languages and the gateways by which your cars communicate with all of the other cars, gas stations, bicycles, pedestrians, and roadways of your city.

These technologists don’t care where they live. More than any other industry they are free from the constraints of geography.

They are free to the extent that the laws governing them encourage innovation.



1. Tim Lee, Top Patent Court Struggles To Decide What Software is Patentable (Ars Technica, 2012)
2. Seth Koppes et al., United States Patent 5,926,792 (USPTO, 1999)
3. Drew Cullen, Microsoft Loses $521m Eolas Patent Appeal (The Register, 2004)
4. Leonard Davis, Memorandum Opinion and Order, Eolas Technologies v. Adobe Systems et al., (United States District Court for the Eastern District of Texas, 2012)



Image of innovation road sign courtesy of Shutterstock

About David Eagle

Bio: David Eagle is a single father, a serious reader of low-brow fiction, a beer snob, writer, and engineer living in Southern California. He writes about life and parenting at, and complains about his dog on Twitter as @cdeagle.


  1. John Schtoll says:

    Also, If I read correctly somewhere else, patents used to be such that in order for a patent to be valid, you had to be able to produce the item in question. I think that in fact, your drawings had to be detailed enough that a person in the industry could produce your item with ordinary effort. So, iow, no more patent trolls. Those who come up with an idea but have no way of actually creating the item and they just wait around till someone does then sue them.

  2. John Schtoll says:

    I think another point about how the system is broken in that it stifles innovation, is the length of copyright and patent protections. Right now it is way too long , imho 20 years is more than enough for the inventor to make their money and this would also allow innovation to flourish.

  3. My dad was a patent attorney who had a degree in chemistry & complained of Judges’ inability to understand processes- it has to be much worse now…..
    We have also reached a point of absurdity where yoga poses and finger swipes are patented anything is subject to litigation.

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