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Why are software patents so trivial? Read a statement from the UK Patent Office

By Ramon Garcia in News
Tue Jul 03, 2001 at 05:32:42 PM EST
Tags: Software (all tags)
Software

Many people believe that software patents are trivial because patent offices do not have good examiners, or good prior art databases. As the statement of the deputy director of the UK Patent Office shows, this is false. The real reason is their attitude and their ideology . Their interpretation of the law is that anything minimally creative is patentable (which means almost anything). They seem to believe that the action of having an idea should give a natural right to a monopoly.


This is what the deputy director of the UK Patent Office said during a discussion in a mailing list on software patents. (The full text of the message is here . Emphasis added. )

> Probably the most important problem here is communication
> between non-programmers (lawyers, patent officials and so on)
> and programmers. It is probably very difficult to convince the
> former about what kind of things are easy for programmers, such
> as having ideas, and what kind of things are difficult and time
> consuming.
I cannot speak for lawyers, but I can assure you that many Patent Examiners are programmers themselves. In my group, all the Patent Examiners who deal with software applications either write computer programs in their spare time or have been employed as programmers before they became patent examiners. They usually have a pretty good idea whether something would have been easy or time consuming for a programmer. However, they might express the communication problem the other way around - it's very difficult to persuade programmers that just because an invention is "easy", does not make it any less patentable.

(I apologize for submitting this story with 7 months of delay. Nevertheless I think that it is quite relevant).

As you can see, the problem of trivial patents is not because of the lack of expertise in the Patent Office. The problem is the interpretation of the requirement of "non-obvious". Something easy for a programmer is not regarded as legally obvious.

The head of the US Patent Office also shares this ideology. See his comments during a debate:

I brought one today that was issued by the U.S. Patent Office in 1867. And, it is a hotel registry book. This is the entire claim: "A hotel registry book with the margin of its leaves occupied by advertisements" substantially as described in that drawing, which looks suspiciously like, if you turned your browser to the right too long today and went to a commercial site, what you'd find.

Do you see the ideology? The man who has the idea of placing advertising in the margin of the leaves of the hotel registry book is an innovator , and those that put advertisement in the side of a web page are imitators

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Why are software patents so trivial? Read a statement from the UK Patent Office | 34 comments (21 topical, 13 editorial, 0 hidden)
Patent Office is not a Barrier (5.00 / 6) (#6)
by Speare on Tue Jul 03, 2001 at 01:47:00 PM EST

[stock rant on the subject]

Patents are not about who is right, or who is first; patents are about who will sue.

The US PTO is a money-making service for the government, and this fact is why it operates as it does.

There is a misconception that it is the central duty of the PTO to form a blockade against granting patents. The PTO can and will block applications where there's heavy similarity with prior art or existing patents, but that's really just a guideline to using the service, not the core function.

The PTO's purpose is to grant patents for a fee, and it's wholly suited to do so.

The application vetting process of the PTO is a cost center for the operation of the PTO. This is akin to saying that customer service is a cost center for the operation of AT&T. It is required, but they'll cut costs as much as they can get away with.

To fix the patent application vetting process, two things must happen:

  • Congress must stop using the PTO's filing fees as a revenue source for other pet interests instead of the PTO's own budget, and
     
  • The PTO needs to allow third parties to aid the vetting process by challenging potential patents before they're granted.

As of 15 March 2001, the USPTO has changed their policies to solve that second problem. They can now publish patent applications before the patent itself is awarded to the applicant. Third parties may now submit "helpful" arguments against controversial applications. The USPTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.

Breaking patents by finding simple prior art is not enough for most cases. Patents already granted are almost never cracked, certainly not by someone using an independent third party's prior art. In the famous Heinlein/Waterbed case, the patent was denied before it was ever granted by the Patent Office. Once a patent has been granted, the Patent Office rarely will get involved in disputes; that is a matter for the courts.

[end of stock rant on the subject]
 
[ e d @ h a l l e y . c c ] spare time? know java? earn cash

Courts... (4.00 / 2) (#9)
by slaytanic killer on Tue Jul 03, 2001 at 02:00:46 PM EST

already granted are almost never cracked, certainly not by someone using an independent third party's prior art.
Just to be sure, are you saying that it is rare for courts to overturn patents, or just the USPTO itself rarely overturns them? The former would disturb me, since the USPTO relies on the courts to resolve patent disputes. (After all, patents are a legal matter; no one expects patent examiners to have the same amount or intensity of training as judges, even on purely technical issues.)

BTW, kudos on the stock rant. There is more disinformation on patents than on most other topics.

[ Parent ]
Heinlein Patent Case (4.50 / 2) (#10)
by Elkor on Tue Jul 03, 2001 at 02:03:12 PM EST

For those who don't want to scroll through all the text in the link for the two paragraphs relevant to the post, see below.

Regards,
Elkor


------------------------
In article paul@moncam.co.uk (Paul Hudson) writes:
>In article <975@oravax.UUCP> harper@oravax.UUCP (Douglas Harper) writes:
>
> In _Double Star_, the late Robert Heinlein describes a waterbed being
> used as an acceleration couch. Did waterbeds already exist or did he
> invent them?

>As far as I know, he invented them. I remember seeing some dicussion
>as to whether he should have applied for a patent...
>--
>Paul Hudson MAIL: Monotype ADG, Science Park, Cambridge, CB4 4FQ, UK.
What happened was that somebody else applied for a patent but couldn't
get one because Heinlein had already though of the concept and then
written about it, thereby putting it in the public domain.

BTW, Heinlein thought up the concept when he was sick (with malaria?).
It seems that one night in Panama he was lying in basically a blood-warm
swimming pool, one of the more comfortable experiences of his life.
When he got sick he often thought back to that night and about how
uncomfortable his then present bed was. Expanding on the idea brought
up the waterbed.


"I won't tell you how to love God if you don't tell me how to love myself."
-Margo Eve
[ Parent ]
heh (4.50 / 2) (#14)
by chopper on Tue Jul 03, 2001 at 02:13:57 PM EST

Congress must stop using the PTO's filing fees as a revenue source for other pet interests instead of the PTO's own budget

yeah, that's going to happen. hell, the PTO is one of two (?) offices in the federal government which actually makes a profit. asking congress to give up their stranglehold on the PTO's budget is like asking them to give up their hold on DC's city budget.

give a man a fish,he'll eat for a day

give a man religion and he'll starve to death while praying for a fish
[ Parent ]

US PS (4.00 / 2) (#17)
by Speare on Tue Jul 03, 2001 at 02:53:57 PM EST

The other service to which you allude is the US Postal Service, and yes, it has achieved autonomy.

Congress is attempting to wean the AMTRAK rail system from the public sector, and if the high speed rail plans pay off, it too will be making a profit autonomously.

But you're right, the US PTO has no marketing to speak of, and thus the Congress can pretty much control it without comment from the public.

And lastly, if the US PTO were fully privatized (even more than just fiscal autonomy), do you think it would fare better than the WIPO or ICANN style "self-proclamator" services out there? People would be even MORE jaded and disenfranchised about its processes and lack of oversight and accountability.
 
[ e d @ h a l l e y . c c ] spare time? know java? earn cash
[ Parent ]

hmm... (5.00 / 1) (#28)
by chopper on Thu Jul 05, 2001 at 11:41:20 AM EST

...that's a good question. lately, the PTO has gained a bit of autonomy, becoming a performance based organization, which gives it lots more power over administrative stuff. but still, no real control over its budget.

as to the USPS, its kinda hard to compare the two re:autonomy and budgets, as the USPS is a high-profile organization, which has competition in america. everybody uses the post office, sees the commercials, etc, whereas the PTO has non of those problems; if you want a US patent, you have to use the patent office.

give a man a fish,he'll eat for a day

give a man religion and he'll starve to death while praying for a fish
[ Parent ]

The only way to fix it... (5.00 / 1) (#29)
by dennis on Fri Jul 06, 2001 at 10:05:04 AM EST

...is to change the incentive. If, for example, the USPTO had to refund the filing fee for any patent that got overturned in court, it would have at least some incentive to vet them properly. As it stands, denying a patent is against the USPTO's own interest.

If I had my way, they would also have to pay the legal fees of anyone successfully challenging a patent.

[ Parent ]

I don't believe this for a minute (4.66 / 3) (#11)
by SIGFPE on Tue Jul 03, 2001 at 02:06:20 PM EST

They usually have a pretty good idea whether something would have been easy or time consuming for a programmer.
I have just gone through part of the process of applying for a patent for an innovation that depends to a large extent on software. We explicitly brought up the question of programming expertise with the lawyers. It's quite ridiculous to expect these people to understand anything non-trivial. Knowing how to add up some numbers in a few records in a database using SQL doesn't make you able to understand a new algorithm for quickly rendering 3d scenes, say. And yet this was the situation I was in. At least this lawyer knew how to represent colours using red, green and blue unlike the previous patent lawyer we rejected. I really don't believe that any lawyer I have met has any qualifications to estimate how hard a software project of mine was. They may claim that they do but they're lying. One line of code can take months to write - thousands can take but a day.

Now that's lawyers I'm talking about. Well paid people who can probably make more $$$ as a lawyer even if they are half decent programmers. Imagine why a person who could program would become a low paid patent examiner and it becomes pretty obvious that they are probably completely incompetent to judge. At least in the US they make no pretense of their incompetence and make the smart move of delaying the real work of determining the validity of a patent to the courts. In the courts you actually have parties who have some interest in proving or disproving the validity.
SIGFPE

Are patents really the issue? (4.25 / 4) (#15)
by Brazzo on Tue Jul 03, 2001 at 02:19:22 PM EST

You know, the more I read these types of stories on k5 and /., the more I ask myself if patents are really the problem.

Patents are designed to protect intellectual property, and as such, have little to no real mechanism in place to define the relative difficulty of discovering that 'invention'. What may be considered hard for a programmer to discover may be next to impossible for a marketing drone. Likewise, what may seem simplistic to a chemist may seem astoundingly difficult to said programmer. The difficulty in discovering an invention isn't something that needs to be legislated.

And, an additional level of protection is provided to the patent applicant: if something was "so easy" to discover, then why didn't you patent it?

Now, I realize that the 'why didn't you patent it?' argument has flaws, and that the prior art process isn't always as thorough as it needs to be. However, that's not what this story is about. This story is about whether something considered as simple as "[...] having an idea" should grant you a "[...] natural right to a monopoly."

Should the fact that you had an idea mean that you should be able to patent it? Yes. If what you thought of isn't obvious, isn't patented already, and isn't duplicated by a work of prior art, then you should have the sole and exclusive rights to patent that idea. Additionally, you should be granted the rights to do whatever you want with that idea -- develop it into a product and market the hell out of it on one end of the spectrum, and give it away for free on the other. It's your idea and no one else's.

I think that Mr. Probert says it best:

"[T]he patent system has never differentiated between inventions on the basis of how much the underlying research cost. It doesn't even distinguish between those inventions that are truly valuable and ground-breaking, and those that are [comparatively] trivial and insignificant. As the law stands, we would not be able to do so even if we wanted to. Only if an invention is known or obvious can we raise a legal objection."

The emphasis is mine, but the point is his: patent law can't differentiate between hard and easy inventions, just on those that existed previously and those that are new and valid.

The issue, then, lies with the abuse of patents, and the process of defending the gaps in the prior art research. Once someone has been granted a patent, they frequently use that patent as a legal baseball bat to beat down competition that they would normally be unable to defeat. The ensuing lawsuits to defend an example of prior art and to fend off a claimant's lawyers is usually enough to put most small start-ups out of business. That is what I think most people have a problem with; not with the patents themselves, but the use of patents as a legal weapon.

Whose fault is that? Is it the fault of the patent office, for doing its job? Or, is it the fault of the courts for having untimely and costly methods for disputing patent claims? Maybe it's the fault of companies that use patents as weapons, and neither the legal systems' or the patent offices'.

But, what I think has been drowned out in all of the clamor to reform patent law is that the patent offices of the world were designed to do one thing: protect small people without the legal, technical or marketing resources of larger corporations from being crushed under the wheels of those same corporations. Patents were designed to legally defend people's rights to their ideas from more organized and wealthy groups.

Personally, I think that the real issue lies with the legal system, and its inability to promptly and affordably provide recourse to those wronged by either incorrectly issued patents - those where prior art exists - or those wronged by larger companies who threaten to sue patent holders into selling the rights to patents.

But, I think that's a different argument for a different post...

Except... (4.50 / 2) (#16)
by dennis on Tue Jul 03, 2001 at 02:44:06 PM EST

It's your idea and no one else's.

Except plenty of patents cover things that get independently invented. If you patent an idea, then ten other people think of the same thing without ever hearing of you, it's not "your idea and no one else's." The reason so many programmers hate patents is that we keep discovering we don't have the right to use our own ideas.

[ Parent ]

Then patent it... (4.00 / 2) (#20)
by Brazzo on Tue Jul 03, 2001 at 06:24:48 PM EST

I hate the idea of frivilous patents, but if you think that:

  • What you've just thought of is unique, and
  • You're worried that someone else might stop you from doing whatever you just thought of someday
then patent your idea.

Barring that, at the very least document your idea, with a date and time, and go into copious detail. Where I work (a software development firm) we're each given a little brown notebook. Anytime we get an Idea that Might Be Patentable, we're supposed to write it down in the book, in ink, and sign and date it. It doesn't matter how trivial it is, because as patent lawsuits are more and more frequently showing, "trivial" things can be patented.

Now, like I said in my earlier post, I think that the lawsuits associated with patent law are the real issue. However, I think that some sort of peer review would help the patent process immensely, both in weeding out "trivial" patent grants, and in proving prior art.

My problem is that (a) patent law offices will never be able to pay enough to hire a large enough body of competent peers for every field, and (b) opening up the patent review process to industry is opening a can of prior art worms that could grind the patent process to a halt, while said companies involved in the patent review process reap the benefits of what would effectively be insider knowledge.

But, to try to (again) succinctly answer your complaint: if it means that much to you, patent it.



[ Parent ]

Still problem, surely? (3.66 / 3) (#21)
by _cbj on Tue Jul 03, 2001 at 06:44:57 PM EST

But, to try to (again) succinctly answer your complaint: if it means that much to you, patent it.
Isn't that impossible if it's already been patented, even if you invented it independently?

[ Parent ]
Reading comprehension (4.00 / 3) (#23)
by MfA on Tue Jul 03, 2001 at 09:11:38 PM EST

He obviously disagrees with you that an idea can ever be "your idea and no one else's" on the grounds that you do not have to be aware of the past history of everyone else's idea's the moment you have yours.

I personally dont think FP's grant you ownership to an idea in the moral sense... IP is a legal construct to benefit society, not real property.

Going too far in protecting it could easily start costing us more than it gains. Making available of source code which implements other people's "IP" count as contributory infringement is such an example IMO (can make life really hard for scientists and students). Or for something a little farther removed, mandatory access controls on all devices capable of audio/video output (this is obviously what media-mogul lobbyists are driving for, at the moment it seems unlikely it will ever go that far... but I give it even odds).

[ Parent ]
goal of patent law (4.00 / 2) (#22)
by speek on Tue Jul 03, 2001 at 08:48:41 PM EST

Additionally, you should be granted the rights to do whatever you want with that idea -- develop it into a product and market the hell out of it on one end of the spectrum, and give it away for free on the other. It's your idea and no one else's

That's not the idea behind patents. Providing monopolistic control over an idea is considered a necessary evil, to be stomached for a limited time in return for something valuable to the public (who granted the patent, via the government, in the first place).

That "something valuable" is that the idea is shared with all, and eventually, everyone has free access to the new idea. Enrichment of society, of the public, is the only goal of patent law (as stated by the creator(s) of patents). There is no intent to benefit the innovators - the fact patents do benefit innovators just happens to be the chosen strategy to achieving the desired end.

We should keep this in mind when discussing patents, because if we run into situations where patent law is not achieving the stated goal, then there's reason to try to rectify the problem - by modifying patent law, if necessary.

--
al queda is kicking themsleves for not knowing about the levees
[ Parent ]

Re: prior art. (5.00 / 2) (#26)
by Ramon Garcia on Wed Jul 04, 2001 at 11:26:16 AM EST

I find the argument of prior art contradictory. If
lots of patents are invalidated because of non-patent prior art, that means that the incentive of monopoly is not neccessary for those inventions. The real problem is that patents are being granted for so easy things, that the probability that somebody had the same idea before is very high.

[ Parent ]
Patents (4.50 / 2) (#18)
by Nitesurfer on Tue Jul 03, 2001 at 05:07:30 PM EST

Speaking from experience -- filing a patent and seeing any kind of reward come from it is a LONG ARDUOUS process. The Catch-22 of the process is you better have a lot of money.... even though that is your ultimate goal. So what does the little guy do? They risk everything to see it through. That final patent issuing is theirs by right... they filed , they risked their money, and they put all the hard work into marketing.

If we removed the patent system... utter chaos would result. Where is the incentive for the little guy to try and make something new when the BIG companies can come along and scarf up their ideas with no recourse?

I know this goes against the OPEN Development ideals floating through the industry, but OPEN Development is a fairy tale when it comes to Corporate America. Look the number one thing is to make a PROFIT. If they can protect what you think you are OPENLY developing --- they will. Then they will sue you to cease and desist.

just my 2 cents


David Byrd

CEO --- Twenty First Century Technologies, Inc.
Home of the Nite-Surfer Illuminated Keyboard

Dont remove the patent process.... (4.00 / 2) (#24)
by trebuchet on Tue Jul 03, 2001 at 09:57:18 PM EST

I dont think anyone wants to see the patent process removed. It just needs to be fixed. Most people here support the little guy.

--
I wanna be a new original creation,
A cross between a moose, a monkey, and a fig.
I'm ready, Monsanto, let me be your guinea pig.
--Moxy Fruvous
[ Parent ]
Patents on small ideas. (5.00 / 1) (#25)
by Ramon Garcia on Wed Jul 04, 2001 at 11:19:51 AM EST

I believe that patents should be based in a balance between the research effort and the monopoly granted. I disagree that a medicine
that has taken five years of research should
be rewarded the same protection as your small
creative idea.

The argument of the little guy is not correct. There is nothing in the patent system that discriminates in favour of the little guy and against big companies. Big companies are as capable as the little guy in having new ideas.

Futhermore, the system does work in practice against small companies.
Every new startup in Sillicon Valley has to
pay Lucent a tax for their portfolio of trivial patents. Microsoft and IBM have large portfolios of trivial patents, so that if you sue them for infringing a patent they can countersue you because they know that you must be infringing
some of their patents. If you think that you
are free from being imitated by Microsoft with
patents you are wrong.

It is true that given the position of big companies a startup is forced to do everything posible to protect itself. But using patents as an antimonopoly mechanism is a contradiction. Patents are monopolies. The right thing to do is to have
good antitrust laws that protect a startup
as much if the startup wants to change the world as if the startup just wants to make a better wordprocessor.

[ Parent ]
Don't SQUASH the Little Guy (5.00 / 1) (#27)
by Nitesurfer on Thu Jul 05, 2001 at 10:48:53 AM EST

The argument of the little guy is not correct. There is nothing in the patent system that discriminates in favour of the little guy and against big companies. Big companies are as capable as the little guy in having new ideas.

I agree there is no discrimination for or against the little guy in theory... however remove the current system and the LITTLE GUY get squashed.

I believe that patents should be based in a balance between the research effort and the monopoly granted. I disagree that a medicine that has taken five years of research should be rewarded the same protection as your small creative idea.

I think the ISSUE here is risk. I have spent four years risking everything building an idea. True it might not benefit the population medically (although there is evidence it can help reduce glare, and help reduce Computer Vision Syndrome). But the fees for my patent cost just the same as for the medical researcher.. and my funding did not come from other sources and most medical research comes from grants. Even beyond the research point --- there is still a lot of research work left to do. You have to research who to talk to, learn a whole lot of intellectual property law concepts, and then you have to research the marketing aspects. Most of the funding for grants have a marketing/legal team to take it from the patented Idea and make it a viable product. The researcher is not left trying to sale the idea... his or her Angel Investors or Venture Capitalists will take it from that point.

In truth I believe I have learned a lot more outside of my current job in the last four years , than I did on the job.

And why shouldn't the solution to a problem be easy. Sometimes the easiest answer to solve a problem is right in front of you.


David Byrd

CEO --- Twenty First Century Technologies, Inc.
Home of the Nite-Surfer Illuminated Keyboard

[ Parent ]
You CAN protect your 'open' project (none / 0) (#34)
by der on Tue Jul 10, 2001 at 09:33:35 AM EST

... With the GPL. If you GPL your work, it can't be "scarfed" up by "BIG Companies", at least not without remaining free.. so if they do, you can just take their enhancements and stick them in your original project. Therefore, your work is protected. This is the very point of the GPL.

And Re: your last paragraph, (I may be misreading, it's not very clear) if you're suggesting that a corporation can 'steal' your project and then sue you for working on it, it doesn't work that way. At all. :)

[ Parent ]
good resource (5.00 / 2) (#19)
by akb on Tue Jul 03, 2001 at 05:34:06 PM EST

The Consumer Project on Technology maintains a good resource on software and business method patents here.


Collaborative Video Blog demandmedia.net

Why are software patents so trivial? Read a statement from the UK Patent Office | 34 comments (21 topical, 13 editorial, 0 hidden)
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