Hacking the Xbox

Chapter 12 - Caveat Hacker 179
art” to create the invention without much experimentation. Once a
patent is awarded, the application is made public. By making the
information public, the patentee contributes to society’s store of
knowledge.
A patent confers no affirmative rights, however; if you patent an improvement
to someone else’s invention, you can’t practice the improvement
without infringing on the underlying patent. If you invent and
patent a new drug, you may still need regulatory approval before you can
sell the drug.
To be patentable, an invention must be useful, novel, and “nonobvious”
to one “skilled in the art.” The novelty and nonobviousness requirements
mean that the invention must be a sufficient development in technology
before the right to exclude is given. Developments that do not meet these
high standards are denied protection.
Trade Secrets
A third area of law — trade secrecy — is also considered part of intellectual
property law, although it is not really property. A trade secret is commercially
valuable business or other information known to the user but not to
competitors. Secrecy, although not absolute secrecy, is the essence of a trade
secret; one must take reasonable precautions to protect the trade secret
against disclosure.
There’s an obvious relationship between patents and trade secrets, because
both protect useful information. If the useful information isn’t patentable
at all, there’s no choice. But one might not want patent a patentable
invention for several reasons. You might not want to disclose information
in the patent application. Also, if you don’t expect the technology to be
valuable for very long, it might not be worth getting a patent that lasts 20
years.
The main downside of trade secrecy is that it provides no protection against
independent invention or against reverse-engineering. Trade secrecy is
therefore unwise if the secret can be figured out from the product. If, on
the other hand, the invention is a process used in making the product, it
might be hard to reverse-engineer. Even though Coca-Cola has been on
the market for many years, apparently no one has figured out how to
duplicate it.
The Constitutional Copyright Bargain
Intellectual property rights are a means to an end — to promote the
progress of knowledge and technology. As the Supreme Court once said,
“the monopoly privileges that Congress may authorize are neither unlimited
nor primarily designed to provide a special private benefit.” 17
17 Sony v. Universal City Studios 464 U.S. 417, 429 & 432 (1984).