Here are a few smart ideas for making a fast buck (and losing your friends):

1. You hear that a new road is being planned in your area. You identify a point where it will have to go through a narrow pass and buy a short strip of land crossing the pass for a small sum. When the roadbuilders are ready to start work you discover that the market value of that strip runs into millions of dollars. By selling the land to them for a vast sum you provide a great service to society by enabling them use an essential piece of land. 'Everyone wins' you announce. An even more effective strategy would be to buy a small strip of land in every pass even before you find out where future roads may be built.

2. You go to a party and realise that no bottles have yet been opened and there is only one corkscrew. You buy the corkscrew and hire out your bottle-opening services for nearly the price of a bottle each time. Again you are providing an essential service for the other guests so everyone wins.

3. You hear a weather forecast predicting months of drought. You go out and buy up all the hosepipes in the town. When the drought arrives you sell them at ten times the price.

It's easy to make money when you spot the underlying principle behind these rather blatant imaginary examples. None of them require you to actually make any technological product or to provide any professional service. What requires more skill is presenting your actions as a public service or a contribution to the economy when they are clearly purely parasitic. The key in all cases is to identify a small object, service or concept that is cheap or free but that is essential to a much larger enterprise. Domain Name Speculation, the technique of buying domain names that someone else is likely soon to want to use, is a well-known money making scam that works on this principle.

"Biopiracy" is a term designating a related activity - obtaining ownership of a species or its genes with a view to charging other people to use them. In many cases the species or products from the species that have been patented have preciously been in local use for millennia. Often a gene can be patented by a company that has no clear idea how it could be used and that has no plans to develop its own products. A classic example is the neem tree, a tree that has been used for countless generations to make an antiseptic soap. In 1995 the US Department of Agriculture and a pharmaceutical corporation took out a joint patent on a technique to extract an anti-fungal agent from the tree. The patent was eventually abandoned following international campaigning and legal action by the Indian government.

So are such abuses of patent and intellectual property laws widespread? The evidence suggests that, whilst US IP law and increasingly also EU IP laws actively encourage such abuses, some of the larger companies that have been subject to criticism are currently choosing to exercise restraint. Here are two examples:

The 2006 "Greediest Biopirate" Award went to the genomic entrepeneur Craig Venter. The 'Captain Hook Awards for Biopiracy' are announced biannually by the Coalition Against Biopiracy, an informal group of civil society and peoples' organisations including the Indigenous Peoples Biodiversity Network, SEARICE and the ETC Group. Venter's project involved sailing the seven seas in his yacht, Sorcerer II, collecting samples of seawater and 'shotgun sequencing' the genes from the microbes found in the water. So what offence did these organisations think Venter had committed? Their position is that the world's oceans and its contents are public property - a biological commons - and that Venter, through this project, would be converting the gene sequences of its organisms into a private treasure chest. If Venter were simply identifying micro-organisms and then patenting them or their genes then this would be a straightforward accusation - however, following legal challenges to some of his earlier human genome projects, his non-profit organisation now has a policy of making all its genomic data publicly available and of not taking out such patents. My impression is that his critics have missed their chance - they would have been far more justified in giving Venter the award in 1999 when, as president of Celera Genomics, he aimed to create a database of genomic data from the human genome that user could subscribe to for a fee. This encouraged other scientists, through the Human Genome Project, to sequence the entire genome and publish it for free before the data could be privatised.

Inventing patents
Nathan Myhrvold, previously Microsoft's Chief Technology Officer, has founded an "invention company" called Intellectual Ventures - or IV. IV collects patents and is now estimated to have obtained a remarkable 3000 to 5000 of them.

Myhrvold has been accused of being a Patent Troll - someone who "neither invents nor makes products but instead acquires patents and uses them to extort money from legitimate businesses by suing or threatening to sue". It is clear how IV could have this potential. In a recent BBC interview Myhrvold gave an example of speculative patenting - predicting a future demand for hydrogen-powered cars, it could be profitable to invent and patent a high-pressure hydrogen fuel tank. Is that trolling or just innovation?

In some ways it resembles my imaginary examples - the key technological breakthrough here is the engine; the fuel tank is just an unavoidable add-on, so patenting it could be seen as obstructing the development of the vehicle in order to extort money. On the other hand the innovation is likely to be required by the market so a genuine service is being provided.

In reality IV is not currently firing off legal threats in all directions. Myhrvold says "I've never filed a patent lawsuit. I hope never to file a patent lawsuit. That may be unrealistic, but it would be great if I could avoid doing it.... Lawsuits are a ridiculous way to do business." This has not stopped him being labelled as the "most feared man in Silicon Valley", nor has it reassured companies, such as Hewlett-Packard, who believe that litigation is simply being delayed until the patent buying spree is complete.

As with the case of Venter, it is Myhrvold's past record rather than any current litigation that causes apprehension. In the 1990's he helped Microsoft amass the largest collection of software patents in the world - an exercise that seriously obstructed the development of its open source competitors.

In stark contrast, in the opinion of many, are the activities of Forgent Networks Inc and NTP Inc. Forgent Networks Inc is currently suing corporations that use JPEG digital image compression - a technology that has been in extremely widespread use by thousands of companies since the 1980s. The original patent dates from 1987 and was purchased by Forgent in 1997. In 2004 they threatened legal action against 44 businesses using the technology. Richard Snyder, the CEO, says “It’s the American way, and we’re just doing what we believe is the right thing to gain value from what we own.” The strategy may indeed benefit him and his shareholders - but it is difficult to see how anyone else benefits from their activities. Meanwhile NTP Inc, a Virginia-based company with few assets other than 50 US patents - including a mobile email patent. In 2000 NPT notified Research In Motion, the manufacturer of handheld BlackBerry devices, that it's wireless email function infringed NTP's patent. Effecively RIM faced the choice of shutting down their network or handing over millions of dollars, and eventually they chose to hand over $612.5 million.

The losers
Two groups of people are commonly identified as losing out in the intellectual property wars:

Firstly, there are the peoples who have traditionally recognised an intellectual commons and who reject the concept of ideas being private property. Indigenous peoples across the world, who have developed and used complex medical, agricultural and domestic technologies for thousands of years are shocked to discover that foreign companies can simply obtain documents claiming ownership of this knowledge. The situation is not dissimilar to that a few centuries ago when their ancestors were told that they did not own their own land because they did not have the necessary written documents indicating ownership. The UN Development Program (UNDP) in its 1999 'Human Development Report' stated that "the relentless march of intellectual property rights needs to be stopped and questioned". Musicians from societies who have viewed their musical or literary heritage as a cultural commons are equally vulnerable when more proprietorial artists copyright works derived from this tradition.

Secondly there are the practical inventors - the people and companies that actually make products such as laptops and other electronic devices or who write software for them. These people find that they are travelling through a legal minefield. According to the American Association for the Advancement of Science, when they carried out a survey of research projects, "Of the 40% of respondents who reported their work had been affected [by patents], 58% said their work was delayed, 50% reported they had to change the research, and 28% reported abandoning their research project. The most common reason respondents reported having to change or abandon their research project was that the acquisition of the necessary technologies involved overly complex licensing negotiations." Likewise open source programmers who have not proactively protected their freedom to share and change their free software through a GNU General Public License or other copyleft license may find themselves paying trolls for the right to continue using it.

Science Commons, a project of Creative Commons, has been founded to lobby and provide legal assistance to keep ideas in the public arena and defend them from the Patent Trolls. Director John Wilbanks says "Numerous scientists have pointed out the irony that right at the historical moment when we have the technologies to permit worldwide availability and distributed process of scientific data, broadening collaboration and accelerating the pace and depth of discovery…..we are busy locking up that data and preventing the use of correspondingly advanced technologies on knowledge." Let's hope that with such help inventors will feel free again to wander the intellectual commons without needing the constant protection of a lawyer.

Robert Vint

References
Creative Commons http://creativecommons.org
Science Commons http://sciencecommons.org/
Free Software Foundation www.fsf.org
Intellectual Ventures www.intellectualventures.com
Sorcerer II Expedition www.sorcerer2expedition.org
Captain Hook Awards for Biopiracy http://www.captainhookawards.org/winners/2006_pirates
Right To Create http://righttocreate.blogspot.com/