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Patently absurd

By Nicholas Gruen - posted Tuesday, 23 November 2004


I’m worried sick. I made my six-year-old son Alex toast this morning and he played on the swing in the park. I watched him carefully of course - to make sure there was no mucking around. But who is to say that my concentration didn’t lapse? He might have done it when I looked away for a second. He might have swung sideways on the swing!

Of course I remember doing that kind of thing as a kid. But that was before US Patent No 6,368,227. It’s owned by Steven Olson of 337 Otis Ave, St Paul, Minnesota, and it gives him monopoly rights to “a method of swinging in which a user positioned on a standard swing induces side to side motion by pulling alternately on one chain and then the other” - just like I used to. Even before we signed the US free trade agreement, our courts upheld US patents.

See why I’m worried? What if Alex had swung sideways and someone was watching? And what if the word gets back to Steve in Minnesota? I know what I'll do. I’ll write to 337 Otis Ave and beg Steve for a licence for his invention. Yes, that’s it. Hang on. I’ll ask for a licence for Australia. Come to think of it I think I saw some of the other kids swinging sideways down at the park. They ought to know better than to steal from Steve Olson from Minnesota - and me (if I can swing it - so to speak).

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Is all of this a joke? Sadly no. The country we’ve just signed a free trade agreement with has a virulent culture of intellectual protectionism and aspires to capturing more and more rent from its own intellectual and cultural output. One American TV executive described “fast forwarding” through the ads on a legally taped video of a TV program as “stealing” the good bits.

Traditionally, patents have only been available for those who have invented something that would be “non-obvious” to someone in the field. Sideways swinging seems obvious to Alex - and he’s in the field of swinging. But the US Patent Office have taken this test of originality so far down market that Steve got his patent approved on April 9, 2002.

Just because he’s got it doesn’t mean he can enforce it. An Australian court would still throw it out, but not before we’d parted with a few thousand for a lawyer. So far there are no signs of Steve or his agents with binoculars and cameras out there in the parks of the world enforcing his amazing new - well old - way of swinging. There’d be nothing in it if he did. His patent application reads like a bit of a joke, though it looks like the Patent Office didn’t get it. But ridiculous patents are no joke elsewhere.

In software all sorts of obvious inventions have been successfully patented - like Patent No 5,576 951 covering the use of graphical or textual material on a video screen to make a sale. It’s hard to see the patent holding up in court - even a US court - but it doesn’t have to. Small companies might be persuaded to part with small licensing fees instead of facing a protracted legal fight. Several US firms do nothing but pursue this kind of protection money. And of course that forces others to patent technology “defensively” - to prevent others from doing likewise, and to have something to fight off the demands of others.

Software patents could make much software development the exclusive domain of those corporations with a sufficient battery of lawyers, stash of cash and portfolio of “defensive” software patents to fight off the IP marauders. Here’s the senior Vice President of software giant Oracle, “Our engineers and legal counsel have advised me that it may be impossible to develop a complicated software product today without infringing numerous broad existing patents".

Not surprisingly the US has insisted on strengthening Australian IP protection as part of the price of our joining their free trade agreement. Though there’s no economic case for the US requirements, they stop short of requiring that we adopt the madness of software patents.

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We should keep the innovation hurdles in our own IP regime high and join with countries of like mind and like interests to insist that further extensions of IP only take place where independent analysis shows it would be beneficial, not just for the Americans and their firms, but for the world.

There’s another thing. That toast I made Alex. Terrance Lenahan of 246 Unity Dr, Marietta, Georgia, owns US Patent No 6,080,436. It covers “a method of refreshening a bread product by heating for a period of 3 to 90 seconds”. He wouldn’t have his spies in my kitchen would he? He’d have me on toast - well you know what I mean. I’m worried sick.

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Article edited by Jill McGavin.
If you'd like to be a volunteer editor too, click here.

First published in The Courier-Mail, November 15, 2004.



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About the Author

Dr Nicholas Gruen is CEO of Lateral Economics and Chairman of Peach Refund Mortgage Broker. He is working on a book entitled Reimagining Economic Reform.

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