The Founding of an Empire?

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What is Intellectual Property?

Before delving into the discussion of whether Rambus actually owns the patents they claim to have, a quick overview of IP is in order. IP in the U.S. is classified into three general categories: Copyrights, Patents and Trademarks. Copyrights are granted to written material, including books, software, music, artwork, etc. and also extends to other media such as audio recordings and movies. Trademarks are used to ‘brand’ a business or product, and can include words, phrases, logos, etc. Patents are issued for specific products and designs, to protect the inventor from others stealing his/her work and commercially benefiting from it.

IP is only valid in the country that it was granted in. This means that in order to sell a patented product in the U.S. you must either own the patent rights, or have them granted to you from the owner. Until recently, such things as algorithms and processes could not be patented in the U.S., but could only be copyrighted as ‘specific expressions of an idea’. Several court rulings during the 1980s changed this (as discussed here, and as a result many software patents have been awarded that have raised the eyebrows of many, even within the software industry itself.

Since that time, and with the growing popularity of the Internet, it seems that there has been an ‘IP rush’, where companies have been patenting any and all processes, even if they have been in use commercially for many years. There have been several cases where a company has been awarded patents on existing processes that are so broad, it is virtually impossible to avoid using the ‘invention’ in order to be compatible with the way that consumers and industry conducts business.

Even worse, it appears that the U.S. Patent and Trademark Office is having great difficulty in detecting when a patent conflicts with existing patents, and is awarding multiple companies with Intellectual Property rights on essentially the same invention.. This excerpt from a recent newsgroup posting describes what may be a new form of piracy, which has been dubbed a ‘Submarine Patent’ according to the author:

“…First identify an area that a patent would be valuable in, then submit a patent application. If there is prior art that invalidates your patent, leave it out of the application. Ensure that any prior art quoted shows that your patent is unique, so you are shaping the facts to fit your application, knowing full well that it is invalid at the time you submit the application. Its a good idea to “snow” the Patent Office in lots of patent applications at once, and make a few deliberate mistakes in other patent applications to throw the Patent Office off the scent and get the submarine through.”

While this may sound cynical and rather X-files like, there are some that believe Rambus has succeeded in doing exactly this.


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