In the recent, very publicized events surrounding Research In Motion's (RIM) struggles on patents for their popular BlackBerry devices in the United States (where even the US Government claims special rights or "statement of interest" in the fight), the Supreme Court of the US refused to hear the NTP v. RIM patent case. The count down to the "end result" is rapidly approaching, February 24, 2006, and the issues are still in hot debate -- will the doors for BlackBerry in the USA remain open?
In the bid for the U.S. Justices to take on the case at the Supreme Court Level, Intel (a complete outsider) entered an appearance and brief ex parte, to request that the United States Justices define the scope of U.S. patent law. Of course, the implications of such a decision would affect much more than the BlackBerry case; maybe this bench is just not ready for another decades long debate ala Roe v. Waid. However, as the global market becomes more aware, more connected, and more active as a global village, you can bet that this issue will have to be addressed.
When it comes to the BlackBerry patent issue, as highlighted by Intel's pleading, the extension into the world of a competitive capitalist market extends to many critical areas beyond technology and e commerce. Consider the protections around medications that provide the patented watershed of profits for the pharmaceutical companies (see blog "Medications, Canada & Ideology"). Capitalism has already proven a winner over the collective state-run governments of the Soviet Union and its satellites. China, a "communist" country, is booming with capitalist fervor; so this idea of patents and protections that maintain the bureaucracy of major corporations and can stifle innovation must be a topic for governments and must continue towards transition and growth for everyone's sake.
If we embrace innovation, we need a better method of supporting it as positive change occurs within business and new invention, convergence and opportunity rapidly emerges. Rather than denying that the issue exists, giving half truths and half solutions (which legal battles always are), let's deal with these issues by revising the system of patents, and making them better. This is as fundamentally critical to human rights today as desegregation was in the 60's. Aren't freedom of communication and health care among our core principles? Then why should the segregation of access to these core tenets of living be protected by outdated patent laws? In the case of BlackBerry, the media reports are pretty clear. But in the case of medications, driven through the corporate PR, the media has taken positions (e.g. "....medications are in short supply in Canada..."), while glazing over or completely ignoring the fundamentals that have changed the way the world is evolving through technology and the patents that are really at the root of controlling supply. We need a system that can continue to drive forward innovation and protect that right for intellectual property, while leveling the playing field on production and access. We have dealt with cultural-based inequities -- now it's time to look at a better system for preventing inventive-based inequities when a product or service that has core human benefit is created. Profits, yes, I'm all for them -- but at the cost of human rights to health care access? And even my BlackBerry as well? A line needs to be drawn.
Once discovered, medications can be manufactured in our plentiful society with virtually no limit to the compounding of abundant raw materials, and this should breed availability without "elite status" to gain access. Sure, there are pre-cursor chemicals that may be difficult to get, but those are rare. Medications are not in short supply; creative ways of providing health care and making it accessible -- this is what is in short supply.
You can bet the next big global challenge and change will be the around these issues of protection, capitalization and management of profits from Intellectual Property. The era of the new profit model derived from innovation and ideas is here. Let's hope this is pushed beyond the age-old patent laws and systems that allow companies to legally purchase technologies such as IP (ala NTP) and then sit on that technology, waiting for an innovative company to take the steps, risks and struggles to commercialize a good idea -- and then like barnacles, latch onto real entrepreneurial risk takers as they sail the seas of uncertainty, looking for a free ride to the shores of profits.
The often quoted (or misquoted) advice of Patent Director Charles H. Duell when he called for the closing of the patent office in 1899, that "Everything that can be invented has been invented," warrants further contemplation and investigation. Perhaps Mr. Duell was calling for a reform of the patent system even 107 years ago. We don't really know what Mr. Duell intended in his statement -- in fact, it is the subject of some debate, -- but one thing is for certain: the issue of how to model patents is front and center, and it will likely finance many an IP attorney's child's Ivy League education in the future while we wait for a better way.