Time for Patent Reform

Its clearly time for patent reform as it applied to software.  In the last ten years, software engineers have apparently have been able to convince hardware-centric patent examiners that some pretty basic software concepts are "non-obvious" and patentable.  Guestblogging at Overlawyered last week, I mentioned one such patent, the Amazon "1-click ordering" patent, which to me is clearly copyrightable, but not patentable.

Rob Pegoraro makes a similar point in the Washington Post, editorializing on the Blackberry suit:

No, the problem here is simpler. There are too many bogus patents getting handed out.

One
solution would be to make more things unpatentable. Just as you can't
-- or shouldn't -- be able to patent a mathematical equation, in this
scenario you wouldn't be able to claim ownership of things like the
general workings of software (any individual program is already
protected by copyright) or business methods. The U.S. has been a
pioneer in turning those things into new types of intellectual
property; perhaps it's time to declare this experiment a failure.

Another,
somewhat overlapping solution would make it harder to get any patent.
The patent office would apply a higher standard of "non-obviousness" --
the idea that a patent shouldn't reward "inventions" any competent
individual could have thought up. And any outside party could submit
evidence against a patent before it became final.

I am generally sympathetic to Blackberry's plight, in part because I went to school with Jim Balsillie, the CEO of RIM.  One thing Pegoraro missed in his editorial:  The US Patent Office has already said it made a mistake in issuing the original patent that RIM was found to be violating.  The nullification of this patent is working through the system, and RIM is pleading that the injunction against them wait until this process is complete, sort of like a victim on death row begging not to be put to death because the prosecutor has admitted that based on new evidence, he shouldn't have pursued the case in the first place.  RIM has offered to settle with NTP (the patent holder)if there is a give-back if the patent is invalidated in the future, but NTP has refused this.  This all makes for an interesting drama, with a lot of brinksmanship.

By the way, though I am sympathetic to RIM to some extent, that sympathy is diminished by this:

In 2002, RIM sued software developer Good Technology for its wireless
mail-transfer technology and "smart phone" maker Handspring over its
miniaturized keyboard design. Both wound up forking over licensing fees.

As I wrote before, what goes around, comes around when you use the legal system and the long hand of the government to step on competitors.

  • http://accidentalverbosity.com Jay

    I'm with you on this, including the observation of karma coming back at RIM over the period of time when they were popularly known as LIM: Lawsuits In Motion.

  • Max Lybbert

    There happen to be a certain number of back doors in the patent examination process that the harm from the broken system is reduced. However, the basic concept is broken from the start. First, we have a bureaucratic government body that is supposed to determine if something is "non-obvious" (basically "creative"). Why are we surprised when these guys get it wrong? Second, we hand out identical patent terms for drugs (where the research involved is incredibly expensive, and where getting the FDA to approve a new drug can take several years, and where a "cutting edge" drug can be fifteen years old) and software (where economics are very different).

    The good news is that most patent examiners reject the first application as a way of getting the applicant to explain things better. This is good because that rejection establishes an invention that is not patentable (Google "markman hearing" for more information). The bad news is that patent applicants are figuring this out, and I bet they're filing applications meant to lose that first round.

    Oh well, the government bureaucracy is working on changing things. But, to be honest, I'm not holding my breath.

  • Bob Smith

    There are actually 2 problems here. First, a computer science degree isn't a permissible qualification for a patent examiner, so patent examiners are invariably clueless when it comes to software patents and, sometimes, hardware patents. Second, the absurd language used in patent applications to describe the invention is very different from that generally used in the trade or industry of the applicant. Even if the patent examiner is an expert in the field, determining what the application actually covers and whether it's "novel" is often so difficult that it's easier for the examiner to rubber-stamp the application than go through the headache of deciphering the claim.