If You Can’t See the Edges, It Isn’t Property: PK’s Amicus Brief in Nautilus v. Biosig
If You Can’t See the Edges, It Isn’t Property: PK’s Amicus Brief in Nautilus v. Biosig
If You Can’t See the Edges, It Isn’t Property: PK’s Amicus Brief in Nautilus v. Biosig

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    Public Knowledge files an amicus brief with EFF, to attack patents with fuzzy boundaries that impede innovation.

    Imagine you are buying a house, and find out that the next-door neighbor owns all the property that is in a “spaced relationship” apart from the fence. How are you supposed to know what is yours and what is your neighbor’s? If you build a shed a foot away from the fence, is it yours or the neighbor’s?

    Of course, this is a ridiculous situation. When we draw property boundaries, we draw lines, not blurry clouds that force others to guess what is inside and what is outside.

    But this is not the case for patents. Although patents are supposed to specify the boundaries of what infringes and what does not—just like your house’s title deed does—courts regularly allow fuzzy language like “spaced relationship” to be used in defining those patent boundaries. Indeed, the words “spaced relationship” came straight from the patent that is at issue in the case Nautilus v. Biosig Instruments, which was considered acceptable by the appeals court, and is now before the Supreme Court for consideration.

    Today, Public Knowledge filed an amicus brief, in partnership with the Electronic Frontier Foundation, to point out just how big a problem these fuzzy-boundary patents (called “indefinite” in the patent lingo) are to technology, innovators, and consumers just like you and me. You can probably imagine a lot of the problems already—it’s just like the fuzzy fence boundary problem:

    • Bias against other innovators (i.e. “neighbors” to the patent). Other inventors have to guess what the boundaries of the patent are before embarking on new products and technologies, but the patent owner gets the benefit of hindsight in arguing for an expansive definition of the fuzzy term (“Of course I meant for ‘substantially spaced’ to include the shed, your Honor!”).
    • Chilling effects on other innovators. If you don’t know what steps inside a patent’s boundaries, you’re likely to stay as far away from the edge as possible to avoid a costly lawsuit. That means that the patent is blocking a lot more new technologies than it ought to.
    • Fewer new products, services, and technologies for consumers. Because innovators—especially small businesses like startups and mobile app developers—are going to go overboard to avoid these fuzzy patents, consumers lose out on the new technologies that these small businesses could have built.

    When the appeals court said that these fuzzy-boundary patents were acceptable, it reasoned that this would encourage more inventions, by making patents easier to get. But the reality is, fuzzy boundaries don’t encourage inventors; the rewards of invention, such as making a cool product and the accolades of success, are what encourage them to create, invent, and patent. Fuzzy boundaries only encourage patent lawyers to bring complicated lawsuits, hoping to make a couple bucks off of the unwary and unprepared, and there is no need to encourage them.

    Image credit: mikoosij