The World of Junk Patents Implodes?

by Rick Jelliffe

Last week was a big one: if we are lucky it may have been the week in which the US patent system imploded under the weight of its own recent ludicrousness, hopefully to be replaced by a saner one. I am no fan of patents: they are government-granted monopolies and distortions of the market; I can understand their usefulness for encouraging research and development in important but non-lucrative areas (drugs and technologies suited for the 3rd world problems, for example) but it seems to me that without patents companies would still innovate: they would just do so differently,

Speaking at a conference this week, I mentioned that the innovation of the WWW, which surely has dominated the shape of modern IT and production more than any other technology of the last fifteen years, is notable for its use of standards (IETF, W3C, ISO, etc) and for the irrelevance of patents (except as a distraction and brake). Now I know that the physical side (the big pipes of CISCO and so on) do have a lot of IPR involved, but I suspect that the owners of the IP would be making their products and profits regardless: removing IPR would lessen the chance of super-profits, reduce the gambling short-term view of VCs, but not prevent market demand.

A later speaker at the same conference pushed the "you won't get anywhere unless you aggressively respect IPR" line: non-Western countries get a lot of this. Because of the manifest failure of the US patent system, I have not been able to subscribe to this: an unfair, eager-to-please, monopoly-encouraging IPR system directly reduces the ability of R&D-poor countries to compete, and distorts production away from consumer products and towards products for rich people. But at the same time as we were speaking, on April 30, a bomb was waiting to go off in the US that may force me to change my mind, or at least to temper my opposition.

If we are seeing the start of the reform of the US patent system, so that the bar to patents becomes extremely high, there may be a sliver of merit in very temporary monopoly grants as long as it encourages bringing products to market: granting patents that then allows the holder to sit on the patent and protect their current technologies is a terrible abuse, and, indeed, should be an offense: if a company does not want to take up its patent rights, they should lapse. (The Japanese had a similar thought in their old patent system, which IIRC had five year grants to force products to market: this perhaps shaped the form of Japanese technology and innovation towards the practical and quickly realizable, not a bad thing in my book.)

The bomb that has caused this implosion is of course the recent US Supreme Court decisions on KSR Int'l Co. v. Teleflex Inc., which has raised the bar for "obviousness" so that it means something more like...err... 'obviousness' and to re-urge caution in granting patents merely "on the combination of elements found in the prior art", and Microsoft Corp. v. AT&T, which was to do with extraterritoriality and the issue of whether non-physical software was a component of a patentable device. Groklaw has the judgments here.


M. David Peterson
2007-05-06 09:27:16
Nice write up, Rick! I can't help but agree with your analysis, and can only hope that this is the first of *MANY* changes to come.
M. David Peterson
2007-05-06 09:40:53
BTW... I haven't seen the result of this announcement, but this > < seems like something of definite interest as well. Any thoughts on the matter?
Doug Mahugh
2007-05-06 13:51:25
I hope you're right, that these are signs of a coming return to sanity in patents. The software industry has moved patents into areas where they are serving the opposite of their original purpose.

That Washington Post article, which I hadn't seen, is wonderful news. Too many patents are dirty secrets, things that most people would find obviously non-patentable but they slip through a system populated by bureaucrats who are easily snowed by technical details.

Alastair Rankine
2007-05-06 14:21:34
Couldn't agree more. The requirement to implement is something that I've thought about as well.
Rick Jelliffe
2007-05-06 20:31:39
David: On the Washington Post article: some countries allow their examiners to email experts to ask whether there is any prior art (I was asked a question about schemas once). That kind of pro-activeness is good.

If the US patent system has 332,000 patents per year going through 4,000 examiners, then (assuming that there are really 3,220 active examiners and 780 supervising/senior/training/ill examiners) that is about 100 patents per year per examiner, say one patent every 2 person-days. This is not as bad as I thought, but obviously not enough.

If the US PTO wants to restore its credibility and meet the high bar, it seems to me that they need to limit the number of patents of patents granted. For example, by giving every patent application a one person-day first review, then a four person-day second review that allows them time to approve maximum of 84,000 patents per year.

If they are worried about income and overcharging, they can offer a two-tier system with the first round being charged one price (and re-submission being possible), then the second round costing extra.

The higher bar must mean fewer patents granted, and a quite high bar, which is the message that the US PTO should be getting from this decision I think, allows a sea change at the US PTO: to start to err on the side of caution. They need to be looking at a drastic reduction in the number of patents granted, and consequently a drastic reduction in patents being applied for.

Asbjørn Ulsberg
2007-05-07 00:35:35
The problem I have with software patents is that you can patent an *idea*. For other businesses, the R&D involved in coming up with a new product actually includes both research and development. That's what the patent system is supposed to protect; the R&D investment companies put into developing a new product, be it a new cancer medicine, a new battery type or a new car safety hoodickey.

With software patents, there are usually no R&D involved, it's just an idea. It may look like a lot of R&D has gone down in creating the cool drawings and highly technical jabbery that's in the patent registration, but in reality and 99% of the cases, it's something one moderately techincal guy can cough up in less than a day's worth of work. No actual research or development required; if you can describe your idea, you can patent it. And by patenting it, you're effectively stopping anyone that actually wants to do research and, most importantly, development around the same idea, because they can't create an actual product out of the idea without paying you money for it. It's just absurd.

2007-05-07 06:02:43
Plus 1 minus 1. When a hose is closed in one place, a spigot opens somewhere else. Law of Conservation of Cash Flow.

Now the anti-virtual: trademarked identity.

The web continues to undo some rights in favor of others. What came to the musicians first is now coming to a facade near you.

2007-05-07 06:55:37
Software developers are not aware of it (until it's too late) but virtually any software they write could be attacked by a company-ending patent suit. No one is immune, no matter how simple or obvious their code. This WILL destroy your company too, if it's permitted to progress in the way it has thus far. The Court's decisions were a step in the right direction, and just as importantly, well reasoned. Here are some links for readers who may want to contribute to effective anti-software efforts:
Kurt Cagle
2007-05-09 16:47:21
I've been witness to (and in too many cases been asked to provide "patentable material") to companies that are interested primarily in beefing up their patent portfolio to attract investors. In most of these cases, this desire to find something - anything - to patent has in general spurred extraneous development that usually adds, at best, very marginal value to the product overall, usually at a time when such development is under a deadline anyway.

However, in general, the problem that I see even with the principle of obviousness is that many things are intuitively obvious once created, but until then no one has really thought about that particular approach. The level of skill in the evaluator should not in general be considered a determining factor - I have a reputation as an expert in XML ... if it is obvious to me does that predicate that it is not patentable?

I foresee that the inclusion of this mythical "standard person" will likely only muddy the water further. The only reasonable recourse that I see working here is to recognize that the patenting of concepts that do not have physical reality will only cause the whole structure to eventually become a huge impediment to innovation within our society, especially given that the initial reason for patents was largely to provide for financial incentive to innovate in the face of high capital infrastructure costs, not labor costs.

Rick Jelliffe
2007-05-09 21:10:48
Kurt: Legal figures have long been used to concrete-ize legal tests: "the man on the Clapham omnibus", "the reasonable man", and even "a moron in a hurry" have all been invoked. So "a person with ordinary skill" is not surprising, and I don't know that it is a new minting.

On your comment that "many things are intuitively obvious once create", the thing would be not so much your emotion after you have grokked it, but your emotion as an expert when grokking: disbelief or suprise or delight or admiration would be the kinds of emotions (or, at least, stances or attitudes) that a non-obvious technology would evince.

By corollary, perhaps an obvious technology could be detected by using a simple audio meter and seeing if the reviewer made any of the following statutory noises?: "hughhhnnnn?" or "so what?" or "derrrrr" or a French "Pht" or "Thezegizecantbeseriouz".

There is a potential problem with the "person with ordinary skill" test, when used in a area that has exploded like XML has, with lots of casual users. The average level of skills has gone way down since SGML days, I think, because the ratios of schema developers to users has decreased and more schemas are being made either automatically or for boring data. I found it interesting that many people know different patterns for schema construction (Russian Doll, salami, etc) but few people can articulate patterns for schemas themselves (the skeleton pattern, for example) and the assumption that simple wrapping is the only reasonable way to use XML. The problem is that you have to target the "person with ordinary skills" not to the broader XML community, but to people involved in making (non-automated) schemas of similar or greater complexity and perhaps domain area: the "person of ordinary skills" must be at least a peer of the skilled patent-applier for a technology like XML that has been taken up by general folk: "ordinary skill" cannot denote "average skill" because "average skill" may approximate "no skill" for a widely adopted technology!

2007-08-14 06:36:38
Rick: "Ordinary person skilled in the art" is a legal fiction, it is not "us".
A common misconception.