Intellectual Property: The Fuel of Creativity
A conversation with Santa Cruz patent attorney Patrick Reilly
By Eric Johnson
Pat Reilly, patent attorney and founder of IP Society, took an interesting path through a couple of careers and many countries before launching his private practice in Santa Cruz 20 years ago. He began his professional life as a Russian linguist. Fascinated by the technological revolution then underway, he then pursued and received a “double-E” (electronic engineering degree). That led to a marketing and global sales gig, working for Tektronix selling test equipment in Japan, Korea, and Western Europe. “I even sold to Hewlett Packard at one point,” he says, “which is ironic, because Tektronix and HP are competitors in their original lines of business—so it was like Ford selling to Chrysler.”
In that capacity Reilly met a patent law student who encouraged him to become a certified translator, working on Russian patents, “and also German and Japanese—I can do written translations in those languages with a dictionary in one hand.” Riley found he enjoyed patent work, went to law school, and has not looked back. (This Q&A has been edited for space and clarity.)
Everyone has heard Stewart Brand’s line that “information wants to be free,” and some folks take that to mean they can just steal other people’s stuff. Are we living in a time when intellectual property is under grave threat?
Well, let me give you the big picture. The reason we have intellectual property law is to encourage the development of the arts and sciences. And if you don't allow creators to have any proprietary interest in the creation, then you discourage them from disclosing their creations. If you can't reward writers and singers and actors and scientists and technologists by giving them some limited rights over their creations, then you shut down creativity as a business, which means, to paraphrase Lincoln, you remove the fuel of commerce from the fire of creativity.
I run across this all the time: software engineers who are rabidly anti-IP, until, of course their shit gets stolen. When their hard work gets ripped off by somebody, then it's a different matter.
SCW: Why would a software engineer be anti-IP?
Because they think it only restrains them. They think it keeps them from borrowing somebody else's software code, and that they should be allowed to do that.
Is there a way that intellectual-property-rights advocates and the open-source movement are in perpetual conflict, or is there some kind of détente.
Well, there's a detente now, because if you're the creator of software code, there are times when you do want to release it—it isn't like you always want to refuse to let people use it. But you want to have that option. You want to be the one to decide whether or not it's okay.
What was the most surprising thing you learned while studying intellectual property law?
The amazing range of human creativity. People come up with inventions that are based upon highly profound areas of education, and other times they just have these insights and they see something that nobody had ever noticed before, lying there in plain sight. So I learned that creativity is ever surprising.
Can you give an example of an early invention that made you feel this?
Well, the first music on the Internet was developed in Santa Cruz by group of UCSC grads. [IUMA: the Internet Underground Music Archive.] That was new—the idea of allowing consumers to access digitized music via the web—in fact, I'm not even sure if you'd call it the web—it was the Internet. I had a client who was interested in doing an app that would benefit from that and I introduced them. So I got to do some of the earliest patent work for commercial music online.
So—give us the copyright 101 lesson.
Almost any fixed expression almost can be copyrighted if it has creative content to it. Literary works come to mind first—poems and novels and even news reports. Then graphic works—drawings and sculptures. And then of course audio recordings. And dance moves—there's a way of annotating choreography, so a particular work of choreography can be copyrighted as well.
And how does software fit into that?
Well, that's the confusion, because software has utility to it, so you can't copyright that. You can copyright the particular expression of the utility. There are some levels of software there that are too basic to be copyrighted. A simple machine- language command—“add this sum from accumulator A to register six”—that sorta thing can't be copyrighted because it's too functional. But something like the way a an app functions in uniquely determining the price of tea in China, the software that does that is complex enough that it can be copyrighted.
Tell us some good patent stories.
One of my favorite patents was a guy who had worked with the Mercury program, the very first manned space program. And he had discovered that when they put the astronauts in a low-gravity environment, that put them in a low- pressure air-atmosphere state known as “hypobaric.” And when you do that, it turns out the human skin behaves like the kidneys. So it's not an exact replacement, but it's supportive of dialysis. If you can put in a person who has kidney failure in that environment, you can radically reduce their need for dialysis. It's still being worked on right now, but it's a proven thing and I did the first patent on it.
I've got another one for you—this was recently issued, and it’s for people who get phished on their phones. You know, you do a Google search on your phone, you end up going to a website, and there's no security protecting you from malicious code. When you step outside of the walled garden of what's under the control of Apple or the phone company, and you're just out there in wilds of the Internet, and people are getting all kinds of phishing and doxing and malicious spyware put on their phones. So I have a guy who came up with way of determining whether or not a URL is legit or not. It warns you: ‘Hey, your, your stepping into a URL that’s not certified to be secure.’
Then I have another couple patents for a guy who came out with a new way to generate energy from spinning a disc. It turns out that there's a physical property that, when you're down to very small geometries—that gravitomagnetic energy, the stuff that we think of as simply being gravity energy—at the very small geometries there are different dynamics, and you can actually get net energy from spinning a disc around a magnetic energy detector. So…that's new.
And…see what I mean? Who would've thunk it? Creativity! And the weirdest thing about it is that it's very exotic, but the hardware to do it is very straightforward. It's not much different from a hard disc drive, except instead of reading information, you put a magnetic receiver, and the interaction generates energy that goes from the magnet into batteries.
There are almost 6,000 patents held by people who live in Santa Cruz—which might be the most per-capita of any city in the country. How much of that is proximity to Silicon Valley? And how much is sort of the creative, adventurous atmosphere that we all think of as Santa Cruz?
I'd say it's one-third Santa Cruz, two-thirds Silicon Valley. And the biggest reason for that is patents cost money. So usually it's the larger companies that fund most of the patent work. It obfuscates the fact that there’s more creativity in Santa Cruz, because most creators can't afford to get a patent.