Blog Ipsa Loquitur

Published on under The News

The patent system is designed to promote the progress of the useful arts and sciences: Congress is given the authority to do crazy, un-capitalist stuff like give an inventor a monopoly on his shiny new “machine that peels potatoes in the shape of Hitchcock’s silhouette.” Oh, sure, we limit the time to a couple of decades, but it’s an iron-clad right to hock those tater obliterators (When my legal career fails to materialize, I’m inventing this and laughing all the way to the bank.) without limitation, right?

Not exactly.

A recent case involving Microsoft’s popular Office software nicely illustrates the difference between (1) a right to sell your invention and (2) the right to exclude others from selling your invention. At first, they both might seem like monopolies: if you patented an invention, you’re the only one with the right to sell it. However, when people have patents that slightly overlap one another, you run into problems.

In the finest legal tradition I have to offer, consider this hypothetical. Abel invents a new kind of chair; it’s pretty cool, and he patents it. Later, Cain comes up with a way to make Abel’s chair recline. (The patent system allows for experimentation and tinkering with other peoples’ patented inventions.) Cain can still get a patent on his invention, even though it involves Abel’s chair; but if you’re the King of Patents, (The President has yet to appoint anyone to this position, strangely.) what do you give him? Does he get that right to make and sell the chair, or that right to exclude others from making the chair?

Giving Cain a right to make and sell the reclining bits attached to the actual chair that Abel invented would be punishing Abel for not inventing enough, right? If Cain can sell a reclining version of Abel’s chair, Abel will have a hard time selling his own version. (Ostensibly because it’s more boring than Abel’s. I don’t know. Work with me here: pretend that we’re talking about things more exciting than chairs.) We don’t want the patent system to tell Abel to come up with (1) a new chair, (2) a reclining version of that chair, (3) a flying version of that chair, (4) a time-traveling version of that chair, and so on, or risk losing his ability to sell his modest chair as soon as one of those better chairs is invented (and patented) by someone else.

The solution the patent system comes up with is not to give an inventor an exclusive right to make and sell. Rather, we give an inventor the right to keep others from manufacturing the invention. This neatly sidesteps the issue of whether Cain should even be able to get a patent on a reclining version of Abel’s chair. Give Cain all the patents you want: all he can do is keep Abel from making reclining, flying, and time-traveling versions of his boring chair. Abel, in turn, keeps Cain from making the “chair” bits of the “reclining chair” — these bits can be safely assumed to be essential to customer satisfaction. Without them, all Cain is really selling is a footrest, a lever, and some gears. The two gentlemen will have to resort to some other means to settle their stalemate.

Thus, the patent system lets you invent something and prevent people from using it, even if you can’t use it yourself.

What Microsoft has been enjoined (the legal term for “prevented by a dude with a powdered wig”) from doing is selling Microsoft Office, which has a feature that lets it open and save something called an “XML” file. As it turns out, a company called i4i already owns a patent on this specific way of handling an XML file. Even though Microsoft invented a fancy chair, (one that opens DOC files, and TXT files, and has an animated paper clip ask me if I need help every five goddamn seconds) i4i has invented the simple chair.

The inventor of the simple chair (i4i) can keep the inventor of the fancy chair (Microsoft) from combining the simple chair (XML plugin) with the fancy bits (everything else Microsoft Office does), and selling the fancy chair (Microsoft Office as it existed last week). Which is exactly why Microsoft had to pull copies of their software off the shelves last week.