INTELLECTUAL PROPERTY | IP IN OTHER AREAS OF LIFE | MISUSE

 

Complicating the balance between intellectual property rights and the rights of the public are the frequent manipulations, subversions, and deliberate decisions to ignore those rights.  Corporations use patent laws to control the market to their own competitive advantage.  One such instance occurred  when the Eastman Kodak Company (EKC) discovered that there was significant profit to be made in retaining exclusive rights to repair their own equipment.  They simply refused to supply replacement parts to competitive repair providers.  In June of 1996 the Supreme Court ruled in Eastman Kodak v. Image Technical Services that EKC must sell replacement copier parts to independent repairers.  The company attempted to invoke patent protection, but the court ruled that EKC had perpetrated an illegal monopoly in the business of copier repair. 

Frivolous patents are also problematic.  Filed in other countries, these patents limit competition by preventing local manufacturers from producing a given item.  Palagummi Sainath, a freelance journalist who specializes in the effects of globalization on developing countries, cites a study in Patent Folly: Another Point of View, which indicates that only .03 percent of the 2,534 pharmaceutical patents granted in the nation of Columbia were functioning as intended: for protection.  Instead, the vast majority are greed-driven patents, less about protecting ideas than protecting market share.  Nathan Myhrvold, Microsoft's first chief technology officer, explains that in the highly competitive computer industry, "many of the largest tech firms have standing policies that prohibit engineers from reading patents or checking whether their work infringes."  These companies find it much easier, cheaper, and less obstructive to deal with the legal consequences of intellectual property infringement later.  The onus is on patent holders to discover the infringement, and proceed with costly litigation.  "Patents are now being used to privatize knowledge and resources that would otherwise be available to the public or to the scientific community," states Sainath. 

Intellectual property protection creates other advantages for corporations over individuals. The last ten years have seen a trend in patents for commonly used items (e.g. the hyperlink, and pop-up window), issued to "patent trolls," who hope to collect licensing fees from users.  Users may be forced to defend the use of items they consider public domain against frivolous copyright infringement lawsuits.   These suits may pit individuals of modest means against corporations with unlimited resources.  Also, corporations with legions of lawyers focused on obtaining and protecting patents are able to prevent smaller companies and individuals from doing the same.  Consider Richard Lang, co-founder of a small software company called Burst.com.  In the late 1990s, his small company partnered with Microsoft to design software.  The resulting software, a plug-in for Microsoft's Windows Media Player, was marketed only briefly, however.  Microsoft soon reneged on their commitment to Burst and released a version of Media Player that was incompatible with Burst's software.  In a few short months Lang's company went from over one hundred employees to a mere handful.   One year later, Microsoft released a video delivery system utilizing Burst's patented information.  Lang sued, and after an expensive, four-year legal battle, finally settled for a $60 million licensing fee.  Ironically, Lang's Burst.com has itself been suspected of "patent trolling" of late.  Many companies have also used patents to suppress socially, technologically, or environmentally useful information.  According to Brian Martin, a professor researching the dynamics of power at the University of Wollongong in Australia, one such instance occurred when General Electric delayed the introduction of fluorescent light bulbs, for fear that they might compete with the incandescent light bulb, a market G.E. dominated.

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