On this Independence Day I gave some reflection to the intentions of our founding fathers, and how that relates to our processes of elections and the innovations we should strive for to ensure accuracy, transparency, verification, and security. And as I thought about this more while gazing out at one of the world’s most precious natural resource treasures and typing this post, it occurred to me that innovation in elections systems is largely around the processes and methods more than any discrete apparatus.
That’s when the old recovering IP lawyer in me had an “ah ha” moment. And that’s what this long-winded post is about—something that actually should matter to you, a reader of this forum about our on-going effort to make elections and voting technology critical democracy infrastructure.
You see, in America, innovation has long been catalyzed by intellectual property law, specifically patents.
And as you probably also know, patent law is going through major reform efforts in Congress as you read this. Now here is what you may have missed, which in my reflecting on this Fourth of July holiday, the efforts of the TrustTheVote Project, and innovations in voting technology, dawned on me: there is a bad ingredient to the current patent reform legislation that threatens to not only undermine the very foundations on which patent law is used to catalyze innovation, but equally has the potential to undermine some very basic ideals our founding fathers had in mind as this nation was born. Bear with me while I unravel this for you; I think it will grab your attention.
So it starts with Members of Congress debating patent reform through the America Invents Act (H.R. 1249). You see, few may be aware of the role that business method patents (BMPs) play in the political process, especially during elections. BMPs have been used to protect innovations designed to improve the operation of the political process. And it is not unreasonable to assume that the TrustTheVote Project itself is working on innovations that should well qualify for patent protection resulting in patents we would assign ownership in to the general public. Weakening the protection for such innovations may in turn reduce the motivation for companies and individuals to continue innovating in these technologies. And it certainly could impact our work as well. But this is exactly what Section 18 of H.R.1249, the America Invents Act of 2011, as currently drafted would likely do.
There is a long history of inventors using BMPs to protect their innovations related to voting systems. As such systems have developed, from paper voting, to electronic voting, to on-line voting, companies both large and small have continued to innovate, and to protect their new technologies via the patent system, often through the use of BMPs.