Slashdot Mirror
ABA Journal On One-Click (And Even Sillier) Patents
smarner writes: "The American Bar Association's Journal (ABA Journal) just came out today, and there's a thorough and interesting article called 'Patent This' regarding the one-click and other business method patents that have been drawing the ire of many lately (including /.ers). The article is on-line here."
PatentPro creates a properly formatted, fully submittable patent application without the need for an expensive patent attorney. "PatentPro is the only product in the world that can claim to have patented itself," boasted Kernel CEO James Petruzzi, a patent attorney, in a press release.
Hmm, somebody took the "I'm going to patent patents!" joke seriously then...
-dair
Comparing mathematics to computer science is laughable?
Have you taken a course in Automata, or even Discrete Math? Do you know who Alan Turing is?
No, computer science is very much rooted in math. In fact, we still haven't gotten past some of the boundaries that the original math has set up for us.
For instance, no computer on Earth can compute more than a Turing Machine can, strictly speaking, and NP-complete problems still haven't been found to take a polynomial amount of time.
No, real Computer Science problems require a large mathematics background. Therefore, I would say that it is you who are uninformed, for I am not about to hurriedly level base accusations of trolling. Please be more polite to your fellow slashdotters in the future, if that isn't too difficult to do.
---
pb Reply or e-mail; don't vaguely moderate.
pb Reply or e-mail; don't vaguely moderate.
"My opinions are my own, and I've got *lots* of them!"
1. Implement a review system as done by most research journals -- peer review. When a new patent is applied for, a random N out of M of appointed experts in that field are selected to review the patent. The experts must be sufficiently broad in professionalism (eg industry vs academia) and specialities. They recieve the patents 'unidentifiable' such they should have no idea whom is applying for the patent. In addition, the randomly chosen reviewers would not be known except to those in the USPTO. The critiques of the patents can include references to potental prior art, questionable patents including perpetual motion-like qualities of obviousness, and other similar comments. The comments are sent back to the USPTO, which resend the comments back to the applicant. They would then have a limited amount of time to rewrite or modify their patent application to distinquish or clarify any concerns that were brought up, then resubmit it. This revised version then goes back to the same original reviewers, each which votes yes or no on awarding the patent, with either majority or 2/3rds to be awarded. If, for example, a reviewer does not see any changes that addresses his concern for prior art of the original application, he can vote no for it since the revisions suggest that the applicant didn't worry about it. This idea would make much of the current USPTO irrevelent and limit it mostly to administrative stuff. Two problems would be how would reviewer selection be made; initially it may be through congressional review or public review as was sorta done with ICANN's lastest voting, or maybe a nomination process. Once in place, further appointments can be done by selection of the review committee for that field. The other problem is that reviewers will have a heads-up on any technology that is gained via patent review in this fashion, so there must be a NDA-like agreement not to use that information for gain, but hopefully integrity of the appointment would be checked before the appointment was made.
2. After the USPTO reviewer reviews the application, the patent and comments are placed on a web site for public review. Note that just prior to this, patent protection would be issued for that application, such that the public posting of it would not harm the applicant. The public would then be able to comment on the patent over a 2 or 3 month period, comments going to the USPTO reviewer. The reviewer then must follow up on any possible conflicts or oversights prior to granting or denying the application -- and since these public comments would be on record, if the reviewer failed to do his job at this point, he'd be in big trouble. Patents that failed to meet up to public scurity and subsequent review would lose their protection, and the application would have to pay for that short term protection they got from the USPTO while the patent was publically displayed.
The ideas could be combined such that after the random reviewers have voted yea or nea, the passed applications then go through the public review process. This certainly would length the time to get a patent but given the power they provide to the patent holder, such careful review is necessary.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
This means that if you prohibit patents on one, you really need to prohibit patents on both, as they are totally interchangable. That seriously screws things up, as then the only patentable hardware would be analogue devices, and input/output devices.
The same really goes for any abstract method. If it's a genuine method, it can be mapped using flow charts, JSDs, etc. And once you can do that, you can produce a software version. So, business methods are interchangable with software.
Here's where it gets fun. Any computer program can be described in terms of equations. (As shown by the Z specification language.) So, computer software is also interchangable with pure mathematics.
Genetic engineering operates on base-4 digital strings, which makes it equivalent to business methods, programming, etc.
As soon as you allow ANY one of these, ALL of them will either be allowed, OR there will be a format in which they can be presented to make them legal.
Conclusion: It's an all-or-nothing kind of deal, here. If the patent system, as it exists today, is to remain, then all forms of "soft" patent will end up being permitted. Unfortunately, this makes it so complex and so prone to error, that it may be useless.
Therefore, the current intellectual property system must either be validated or removed. There are no alternatives, in the end.
So, what =would= be a viable alternative? About the only system I can think of that would serve a similar enough purpose to be acceptable, would be some sort of "Intellectual Privacy" concept, where privacy concepts and laws are extended to provide an effective boundary for "innovators" (I really dislike that word) and corporations.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
"$103M. That's One Hundred Three Million Dollars. "A million here, a million there; pretty soon, you're talking real money." Fiddling small change, uh huh."
Compared to the trillion or so that they spend each year 103 mil is chump-change. Compared to our measly incomes, on the other hand, it's something.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
You'd obviously like our brilliant "invention" protected as broadly as we can, even in places where software isn't patentable. Hardware, however, is patentable everywhere. So, what you do is implement your algorithm in a custom chip and patent the chip design. Once this is done, not only does *hardware* implementing the algorithm infringe the patent, but so does software.
As I understand it, this is how IDEA was patented in Europe, along with a bunch of compression algorithms.
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)
I read a scifi book in the past year that was set in the "near" future (~50 years or so). The book was partly about how the US had fallen apart, primarily because its economy had been wiped out by the Chinese who had made available for free via Satellite any and every "protected" bit of American intellectual property.
This crushed the US economy because instead of being good at doing something, the US instead became good at owning the rights to something. In an economy where those rights are protected, this can make you rich and powerful. When someone can take them away, those rights are nearly worthless.
I wonder to what extent the US economy is really vulnerable to this kind of exploitation -- could the Chinese or some other nation suddenly decide that US IP rules are just too much and actively work to break their power by pirating US designs, content and so on?
You have documentary evidence that the wheel was patented? Archaeologists estimate that the wheel was first used in 3500-3000 BC, which wasn't exactly the golden age of intellectual property law, but if you have a better reference, I'd love to know.
Post hoc, ergo propter hoc. Show me the connection.
Or, conversely, those seeking frivolous patents will be encouraged by the utter abdication of authority on the part of an already weak-kneed PTO, and the spate of "one-click shopping" and "web indexing" patents will spiral out of control, until not even the most basic of technical operations can be implemented without paying a king's ransom in licensure and legal fees.
Just a thought.
-----
"You owe me a case of beer. Sucka'."
it redirected me to: http://www.abanet.org/nojavascript.html which reads:
(i changed the link, so it pointed to their server)
Well what if i don't want to use javascript? What if i think it's annoying? what if i (gasp!) don't use a browser that supports it? I could use javascript, but i find it to be just one more annoying way of making things "pretty."
i think the information is more important than the presentation. why do people have to use javascript and flash everywhere? for a lot of people, that just makes it harder to view the web pages. there are some things that flash is suitable for. tragically, it is too often used for things like navigation bars.
I've ranted now, i'm better, i think.
#define F(x) int main(){printf(#x,10,#x);}
F(#define F(x) int main(){printf(#x,10,#x);}%cF(%s))
... this is the equivalent of the bulk-email programs, but targeted at the patent office.
Great idea! Lets couple their software with an e-mail mailbox. Have it generate a patent form automagically and forward it to the patent office whenever it is geenrated, then sign up the mailbox on lots of junk mail forms.
If you thought the PTO was out of control before... wait to you see what they churn out now!
Patents for getting rich while you work at home, patents for seeing hot girls have sex with each other, patents for getting a low interest loan... the possibilities are endless!
No! I mean it! They JUST WON'T STOP!!!
...please make them stop...
>;)
This space for rent. All reasonable inquiries will be entertained at proprietors discretion.
It sounds a bit like "Distraction" by Bruce Sterling.
The thing with the Chinese broadcasting the software to all the world wasn't central in the novel, it was more of a background thing that set the economic environment for the story.
Fairly good book. I enjoyed as I have most of Sterlings books.
Trickster Coyote
Viva les idées libres!
Ideology is for ideots.
As we start to remove the last vestiges of a paternalistic scheme of government that regulates what may be patented, true innovation will again shine through.
It is precisely that paternalism that gives patents their power. The gov't says: Show us your idea and give us $xK and we will grant you a monopoly to use that idea. And if you catch anyone else using your idea without your permission and can prove it in court, we will use our power to force them to give you money.
If you get rid of the paternalism, you get rid of the scheme that is the patent protection racket.
Trickster Coyote
Viva les idées libre!
Ideology is for ideots.
Business Method patents are only the newest complaint. Before that it was Software Patents. Before that, it was Genetics patents. Before that, it was patents on anything that involved any math. The fact is, separating these things out is almost impossible. How do you draw the line between a software patent and a hardware patent? How about a software patent and a business method patent?
I read Amazon's one click patent, and to me at least, it looks like a software method. After all, what's the claim? The computer receives certain inputs, processes them in a certain way, and generates a certain output. This is exactly what a software claim would look like. And if their lawyer had needed to, changing this claim to a hardware claim is trivial. Merely make reference to the processor/memories that perform each of these actions.
So, eliminating a subgroup of patents is very close to impossible. Now, if you want to eliminate all patents, that's a different matter. You could certainly do that. Of course, you'd affect patents that most folks support, in addition to silly reverse auctions. Reality is that patents help the little guy. Something like 99.9% of patents are never litigated. The're simply for one of two things. First, to get money from investors because investors love to see that there is something defineable that is novel. Second, to build a portfolio, in case of negotiation with a competitor.
Personally, I think there are two solutions to the low quality of patents being issued today.
First, publication. The Patent Office has already implemented this. Most patents filed after November of last year will be published. (The inventor can request non-publication, but only if the patent is not going to be filed in any other country.) This should allow folks to review future patents, and send prior art to the inventor or to the PTO.
Second, hiring competent examiners. The real problem is that the PTO is paying $30K for engineers, to live in DC. In today's economy, this is not realistic. You have to pay people a reasonable amount if you want to get competent people. There are only two types of people who work at the PTO right now. Those who really need the job security/insurance benefits provided by the PTO and those who can't hack it in the real world. I talk to Examiners on a regular basis, and I'd say 75% of them don't speak English. This makes it very hard for them to even understand the claims, much less make a competent prior art search & rejection. The suggestion has been floated by someone that we hire from overseas. One of the few perks a government agency can offer is guaranteed green cards of visas, outside the normal bounds of immigration. So, they could hire competent programmers, say from India, who speak proper English, and in addition to their $30K, they could offer a green card after four years. There are plenty of folks who'd jump at this chance. And I expect that the quality of examination would rapidly rise.
Thalia
"the transistor existed in nature as well"
I wonder why it took us so long to discover and put it to use, if it was just sitting there in nature, next to the wheel.
You are totally talking out of your ass. Do you take lessons from Katz?
It's 10 PM. Do you know if you're un-American?
For the patents in question, disclosure isn't an issue. The critical moment in such innovation is the original idea that led to the innovation. Any random programmer can implement one-click purchasing once they see it... but it didn't appear for a long time just because nobody thought of doing it that way. Once it's implemented in a public product, the idea is automatically disclosed.
So for these patents, the only purpose is to encourage innovation. But if there's already enough incentive in the marketplace-- namely, getting your idea implemented first and gaining marketshare before others are able to copy it --then there's no need for patents for this reason either.
Therefore, patents provide no additional benefit for such innovations, and only serve to hamper the field.
--
- Further, it's hardly in applicants' interest to snooker the PTO into issuing defective patents for commonplace business practices, he says. "Patent applicants are both interested in getting valid patents and obligated by law to tell the office about the prior art that is closest to their invention," he says. "As a result, in most cases, even in rapidly developing areas, the [PTO] has the most relevant art before it when it issues a patent."
No, it's in a business's best interest to use whatever means to gain an advantage over its competitors. If the PTO will give it free weapons, with the chance the the weapon might be taken away in court, the business will happily take that chance. There are few negative ramifications for applying for a patent that later gets overturned.Also, if there are no negative ramifications for failing to disclose all prior art, or those laws aren't enforced, then the law is meaningless, other than for political BS like this.
eg. even if specific problems have been pointed out, and specific solutions have been suggested, we shouldn't do anything, because there will always be problems. Yeah.
--
Maybe I'm weird, but is sure feels great to slashdot the ABA!
Given one hour to live, the student replied: "I'd spend it with professor FP who can make an hour seem like a lifetime."
patent awarded last April to Dallas-based Kernel Creations Ltd. for its PatentPro software, which creates a properly formatted, fully submittable patent application without the need for an expensive patent attorney. "PatentPro is the only product in the world that can claim to have patented itself," boasted Kernel CEO James Petruzzi, a patent attorney, in a press release
... this is the equivalent of the bulk-email programs, but targeted at the patent office. I can see how this would be useful to small-time inventors, though.
- - - - -
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
Tiger Woods may have won the U.S. Open, but the golf phenom might lose in U.S. District Court if he infringes on Dale D. Miller's patented putting technique. Since April Fools' Day 1997, Miller has had rights to a "putting method in which the golfer controls the speed of the putt and the direction of the putt primarily with the golfer's dominant throwing hand, yet uses the golfer's nondominant hand to maintain the blade of the putter stable." Patent No. 5,616,089.
Using this logic, I should submit a patent to prevent others from using the foremost fingertip for the purpose of striking where the result is a character or set of characters appearing on a vertical or horizontal surface in a prescribed order. I believe this would cover both paper and electronic forms.
As for the issue of "prior art", I believe the requirement is that I report any known version. I am not going to go out of my way to find examples. I mean alternative entry devices which may conflict with my patent.
-
A 10 foot rope in a 20 foot hole is not a partial solution
Year 2000 Patent Office Fees collected: $984,000,000
Year 2000 Patent Office expenditures: $881,000,000
Remaining for contribution to general revenues: $103,000,000
(From the Patent Office)
If the USPTO were like the USPS, then they'd be autonomous, and able to fold that $103M back into improving the service. But Congress instead funnels $103M into their own pet pork-barrel projects.
$103M. That's One Hundred Three Million Dollars. "A million here, a million there; pretty soon, you're talking real money." Fiddling small change, uh huh.
[
[stock rant on the subject]
Patents are not about who is right, or who is first; patents are about who can 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:
At the minimum, if the PTO would publish the abstract for each patent application at the time of filing, then third parties could submit "helpful" arguments against controversial applications. The PTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.
Once a patent has been granted, the Patent Office does not get involved in disputes; that is a matter for the courts.
[end of stock rant on the subject]
[
This is just a survey article. It doesn't reach any conclusion or add anything to the conversation about business process patents. Don't waste your time.
--
“Doh!”
apparently you need javashi^H^Hcript enabled in order to view this. hmm, isint that a Bad Idea(TM)?
The PTO recently launched a much-ballyhooed Business Method Patent Initiative, expanding its database of prior art and instituting a second-look policy whereby business-method patents are reviewed by a second experienced examiner before issuance. Dickinson says this program has already reduced the Group 705 allowance rate to less than 40 percent.
This after Dickensaon tried to defend Group 705 by saying they had only a 57 percent approval rating. This means that, upon further review, 30% of the patents granted by Group 507 were denied! Yet Dickinson claims that there wasn't anything wrong with the PTO before that.
And to all of those who claimed that the PTO just needs time to adjust: FUCK YOU! I don't see why we should allow assholes to get away with ridiculous patents just because you're incompetent. I wouldn't get to keep my job if I told my boss, "Oh, I don't know what I'm doing yet, things have changed, you'll just have to wait". I say you get your ass in gear or you get a new job.
Very good summary article, although I take issue with one point:
"...O?Reilly had established a cult reputation as a crusader against the commercialism of cyberspace."
Maybe against the brainless and money-grubbing commercialism of cyberspace, but I don't think I've ever heard Tim say that the internet should go back to a pure and commerce-free medium. If he did, he should stop selling books online.
I think Tim is just against using the novelty internet as an excuse for stifling innovation and stealing. (including bad patents)
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
When i read 'American Bar Association' I think 'Beer'.
--
Je t'aime Stéphanie
Get a job at the PTO
It all comes down to the consumers. You can't always rely on the government to make everyone happy, or a few lawyers. Consumers need to be educated about economics and the negative economic impact these patents have on companies. The consumer is the one that suffers from these patents and bad business practices so if the consumer was educated maybe they would boycott these places or refuse to buy a companies product. Most consumers don't realize that competition is what makes a better product. Most people figure the more money you give to a company, the better the product that will come out of it.
For example Linux. Most consumers have no idea what Linux is or what it can do, so they continue to buy Windows products. They continue to support a monopoly even though they have no idea MS is a monopoly. Most people figure since Microsoft has the most money and Bill Gates is the richest man in the world, then they must be creating the best products in the world.
Competition is what makes a better market. Consumers need to realize this and stop supporting the monopolies and other dominant companies.
Outdoor digital photography, mostly in New Engl
This sig is xenon coated, and will glow red when in the presence of aliens
Rather than try to establish an a priori definition of trivial, why don't we make business method, software, and such sorts of patents subject to a simple competition.
Every year, the PTO will be limited to 1000 such patents. Losing patents will be considered the following year, but their lifetime will be reduced by one year. So the criterion becomes "is this really one of the greatest advances of the year?" rather than "gee, off the top of my head, can I remember anybody else having done exactly this before?"
What are the chances of getting one of /.'s "patented" interviews of the author of this article or another relatively impartial and knowledgable patent lawyer? I think I'm getting tired of the IANAL comments (including my own) when it comes to the patent issue.
Waltz, nymph, for quick jigs vex Bud.
This is what Singapore does, for example. Some countries use a simple registration system for patents, like with copyrights, where you simply get a patent number for mailing in a package. The patentee then has to prove the validity of that patent in court. There are pros and cons to this system, as /.ters will realize after a moment of reflection. It's cheap, gets rid of (some) lawyers (who write applications) and examiners, and doesn't give the patent a presumption of validity. However, it's a full employment act for (other) lawyers (who litigate), who will be needed to prove validity, and it enables easier shakedowns by big companies that get patents.
Here's what the page has. Maybe someone could modify Mozilla to ignore this?
<noscript>
<META HTTP-EQUIV="refresh" CONTENT="0; URL=http://www.abanet.org/nojavascript.html">
</noscript>
sulli
RTFJ.
If you can't read it due to JavaScript crapola:
...
INTELLECTUAL PROPERTY LAW
Patent This!
A landmark 1998 ruling led to a rush of Internet companies looking to corner the market on business methods adapted to cyberspace. Critics say it also let in a sideshow of
eccentric ideas, and now they are trying to close the door.
BY WILLIAM C. SMITH
One click. That's all it takes to buy a book--or to start a legal and political fight over the nature of patent law in the Internet age. With a single click of a
computer mouse, a book lover browsing Amazon.com can order Ginsberg's poems, Gunther's constitutional law treatise, Grisham's latest legal thriller or any
other of the thousands of tomes stocked by the nation's largest online bookseller. A millimeter's movement of the finger lets the buyer tell the company to
charge the purchase, yank the book from the shelves of one of its huge warehouses, and deliver the volume to the shopper's home.
The 1-Click button is the Web version of those tempting magazines, candies and similar impulse items by the checkout at supermarkets. The shopper sees and snatches the product
in a single stroke, without the second thoughts that stanch a sale.
That was the thinking of Amazon.com CEO Jeff Bezos, the e-commerce pioneer whose electronic retailing business made him a multimillionaire and prompted Time magazine to pick
him as its 1999 Man of the Year.
Bezos thought so much of his 1-Click checkout method that he marched to the U.S. Patent and Trademark Office. In September 1999, the PTO granted him U.S. Patent No. 5,960,411 for
his "method and system for placing a purchase order via a communications network."
His next stop: U.S. District Court in Seattle to file a patent infringement suit against Barnesandnoble. com, the Web site of bookstore chain Barnes & Noble, alleging that its
single-click Express Lane infringed the new 1-Click patent.
Three months later, the court slapped an injunction on Barnes & Noble, making Amazon the 1-Click king. Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228 (W.D. Wash.
1999).
Blazing the Litigation Trail
Patent litigation rarely makes headlines, even in the business section, but Amazon's lawsuit sparked flaming e-mails, incendiary Web sites and even a
sputtering consumer boycott.
Yet the critics should have been more alert back in 1998, when the U.S. Court of Appeals for the Federal Circuit, which hears patent appeals, paved the way for Bezos' suit with its
watershed decision, State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1360. The ruling, which allowed patents for long-verboten business methods, opened the
floodgates to a deluge of applications, mostly from Internet and software companies scampering to get into the market.
A March 12, 2000, article in The New York Times condemned the sea change in patent law. "Patents began in a world of machines and chemical processes," wrote critic James Gleick,
"a substantial, tangible, nuts-and-bolts world--but now they spread across a crucial boundary, into the realm of thought and abstraction."
Witness the firestorm over the Amazon suit, fanned by maverick Internet innovator and entrepreneur Tim O'Reilly. Once an editor of technology periodicals, O'Reilly of Sebastopol,
Calif., parlayed his publishing and technical know-how into a multimillion-dollar clearinghouse of books and journals on computers, software and the Internet. At the same time,
O'Reilly had established a cult reputation as a crusader against the commercialism of cyberspace.
With its controversial Internet patent, Amazon became O'Reilly's newest target. In a Feb. 29, 2000, open letter to Bezos on his Web site, O'Reilly blasted Bezos' patent as "one more
example of an 'intellectual property' milieu gone mad."
O'Reilly went on to describe patents on such software innovations as "a land grab, an attempt to hoodwink a patent system that has not gotten up to speed on the state of the art in
computer science." He ridiculed the 1-Click patent as "a classic example of the kind of software patent that would never be granted if the patent office had even the slightest clue
about software."
Slammin' Amazon
Internet users, consumer groups and politicians have taken similar potshots at Amazon in the wake of its lawsuit against Barnesandnoble.com.
A group called NoWebPatents.org invited Amazon boycotters to register at its Web site and disclose the amount of their canceled purchases. "Patents restrain competition and
should be granted with caution," says boycott organizer Tom Burns in a press release at the site, warning that the 1-Click patent "could place Amazon in the position of attempting to
own and control online commerce."
Nor are critics limited to new media prophets like O'Reilly. Congress was considering amending the patent statute last term to limit business-method patents on computer-related
applications. Had it been passed, the legislation would have followed the 1999 American Inventors Protection Act, which took direct aim at State Street by letting companies
challenge new patent applications if they too closely resembled methods that have been in use.
Although the passionate debate over business-method patents centers on the Net, it implicates legal principles dating back to the founding of the republic. Article I, Section 8, of the
Constitution authorizes Congress to "promote the progress of science and useful arts" by giving inventors the exclusive right to their creations. And under the patent statute,
Congress allowed patents of any "new and useful process, machine, manufacture or composition of matter," 35 U.S.C. 101.
America's patent system has benefited the public by providing inventors incentive to advance technology, says Q. Todd Dickinson, immediate-past director of the U.S. Patent and
Trademark Office. To earn a 17-year monopoly over a new product, an inventor must file a detailed application that "fully discloses the invention and allows others to build on the
[patented] technology," says Dickinson, who left the post when the Bush administration stepped in.
Over the years, the PTO has issued more than 5 million patents on inventions ranging from the historic--Edison's incandescent light bulb, patented in 1880--to the comedic--a
dog-powered scooter, patented last year. But then, Congress intended Section 101 to include "anything under the sun that is made by man," the U.S. Supreme Court famously
remarked in 1980. Although the range of patentable items may be extremely broad, it's not limitless. To qualify for patent protection, an invention must satisfy statutory requirements
of usefulness, novelty, nonobviousness, and adequacy of disclosure and notice.
The patent office and the courts have also drawn a line between manmade things and processes, which are presumptively patentable, and abstract ideas, which are not.
Until recently, inventions based on business methods or mathematical processes usually fell into the latter category. While the business-method exception was first spelled out
almost a century ago, the mathematical algorithm exception is of more recent vintage. But it sharply limits patents for software-based innovations. In 1972, the Supreme Court rejected
a patent for a program that converted decimal to binary numerals, a procedure essential to digital computer operations. The Court likened the process to "phenomena of nature,
mental processes and abstract intellectual concepts that are not patentable." Gottschalk v. Benson, 409 U.S. 63.
The landmark State Street decision effectively swept away both the business-method and algorithm exceptions. The defendant, Signature Financial Group Inc., held the 1993 patent
for a computer program that ran a "hub and spoke" investment plan. After unsuccessfully negotiating for a license to use the system, State Street Bank sued Signature in federal
court in Boston.
In a 10-page decision that undid decades of doctrine, the Washington, D.C.-based Federal Circuit ruled that the algorithmic nature of a computer program does not bar a patent. As
long as the program is a practical application that "produces a useful, concrete and tangible result," it doesn't matter that the claimed invention merely involves inputting, calculating
and outputting numbers.
The Federal Circuit gave short shrift to the business-method doctrine, ruling that it never really existed. "The business-method exception has never been invoked by this court [or its
predecessor] to deem an invention unpatentable," the court noted breezily; prior cases that mentioned this "ill-conceived" notion were actually decided on other grounds.
In boardrooms and patent law firms across the country, State Street became the starter pistol for a mad dash to the patent office. Scores of companies filed patent applications for
new or existing business practices or Internet innovations that were previously assumed unpatentable. The number of business-method patents jumped from 39 in 1997 to 301 in
1999. The PTO says it received some 2,600 patent applications for computer-related business methods in 1999.
As the PTO approves these cyber-patents, critics worry about the future of the once litigation-free world of the Internet. They cite these developments:
Amazon laid legal claim to another commonplace Web feature with its patent on its system for allowing "affiliate" sites to refer customers for commissions.
Priceline.com patented its "reverse auction" technique, which allows consumers to name their price for airline tickets, hotel reservations and other items. Priceline sued Microsoft for
using a similar system on its Expedia travel site. The suit, filed in October 1999, was settled in January. According to reports, Expedia will continue its price-matching service but will
pay a royalty fee to Priceline.
Computer products retailer Egghead.com won a patent last April for its "method for supplying automatic status updates using electronic mail."
Just as scary to some lawyers was the patent awarded last April to Dallas-based Kernel Creations Ltd. for its PatentPro software, which creates a properly formatted, fully
submittable patent application without the need for an expensive patent attorney. "PatentPro is the only product in the world that can claim to have patented itself," boasted Kernel
CEO James Petruzzi, a patent attorney, in a press release.
But these patents are only a few of the multitude of Internet and business-method patents that have led critics to fault the PTO for approving "inventions" that are obvious, trivial or
simply representative of the Internet version of well-known business practices.
In calling for reform of the patent system, Rep. Rick Boucher, D-Va., ridiculed the PTO for granting the Priceline patent. There was nothing novel or nonobvious behind it except its
use in cyberspace, he insisted. "The market economy of the Western world and the theory of microeconomics is predicated on individuals setting a price at which they are willing to
purchase something."
Weak Spots in the System
Law professor Pamela Samuelson of the University of California, Berkeley, charges that the PTO "simply can't be competent in issuing [business-method] patents" because of
examiners' insufficient training and "woefully inadequate prior art"--the legal term for previously published descriptions of a patented invention. "Besides," she says, "the
Constitution was intended to allow patents for technology. And business methods aren't that."
Greg Aharonian of San Francisco, another longtime PTO critic, goes further, condemning the entire U.S. patent system as "intellectually corrupt." Aharonian, who publishes an
online patent newsletter, decries the "publicly sanctioned but privately ridiculed fiction that the average patent is novel [and] unobvious."
He says his own survey of recent patents shows the PTO's patent review "ignores a significant number of prior patents, let alone most nonpatent prior art."
Dickinson, who practiced patent law in San Francisco before taking the helm at the PTO, believes that reports of the imminent demise of the U.S. patent system are greatly
exaggerated. He dismisses claims that Internet patents threaten e-commerce or the free exchange of ideas about software technology.
"As every new technology has developed, there have been complaints that innovation is stifled by patents," he says. "Well, show me how--not with anecdotes but with broad
examples." Dickinson says patents actually encourage innovation by "increasing the prior art that is available to inventors" and ensuring that a "little guy with a great idea can
compete effectively."
The PTO issued more than 160,000 patents last year, but the ex-patent chief disputes that the office is stretched too thin to do its job. For the last quarter-century, he says, the overall
allowance rate for applications has remained steady at about 67 percent. Business-method patents are handled by Group 705--a special cadre of examiners with appropriate computer
science, engineering or other technical background--which has approved only 57 percent of applications.
The PTO recently launched a much-ballyhooed Business Method Patent Initiative, expanding its database of prior art and instituting a second-look policy whereby business-method
patents are reviewed by a second experienced examiner before issuance. Dickinson says this program has already reduced the Group 705 allowance rate to less than 40 percent.
The Bar Steps Up
Attacks on the patent system have rallied defenders from the established patent bar. In 1999, the ABA Intellectual Property Law Section passed a resolution supporting the
patentability of "computer-implemented inventions encompassing business methods, user interfaces, algorithms, performance enhancements, data structures, usability
enhancements or other inventions which have a beneficial result or other practical application."
Gregory J. Maier of Arlington, Va., a past IPL section chair, says critics highlight "a few inane patents" to portray the entire system "as a dysfunctional national disaster." The
argument that patents have escaped the tangible, nuts-and-bolts world is simply nonsense, he says.
"Patents have always existed in the realm of abstraction. There is no fundamental difference between a current patent that discloses and claims useful e-commerce software and
Samuel F.B. Morse's patent on the telegraph or Alexander Graham Bell's patent on the telephone, both issued in the 19th century and both surrounded by storms of controversy,
now forgotten."
Section chair-elect Charles P. Baker of New York City agrees, citing the section's formal opposition, expressed in a 2000 resolution, to "any amendment or interpretation [of Section
101] that excludes business methods from the class of statutory subject matter."
Baker dismisses calls for restrictions on business- method or software patents. The PTO's prior art files in these areas "may be less than perfect," he concedes, "but the office realizes
this and is doing its best to rectify the situation, both by hiring more knowledgeable examiners and by gathering more documentation."
Further, it's hardly in applicants' interest to snooker the PTO into issuing defective patents for commonplace business practices, he says. "Patent applicants are both interested in
getting valid patents and obligated by law to tell the office about the prior art that is closest to their invention," he says. "As a result, in most cases, even in rapidly developing areas,
the [PTO] has the most relevant art before it when it issues a patent."
Dillon, Colo., patent lawyer Carl Oppedahl agrees with Dickinson's claim that Internet patents encourage competition and innovation. "The patent system is one of only a very small
number of factors tending to level the playing field as between new, innovative companies and old, slow companies," Oppedahl says.
"Essentially," says Atlanta attorney Jeffrey R. Kuester, "we should simply let the patent system adjust to this new economy without trying to fix it." Kuester, chair of the IPL
section's Special Committee on Patents and the Internet, adds, "The whole world has had to adjust to this new communication medium, so why would we expect the patent system to
handle it overnight without a few bumps in the road?"
But despite the ire sparked by the onslaught of business-method patents, the controversy over Amazon's 1-Click patent created an unlikely alliance between two erstwhile
adversaries.
Following O'Reilly's February 2000 open letter, Bezos defended his action with a hard-headed business justification: Without patent protection of its business method, he argued,
Amazon could be taken over by another e-commerce business.
But Bezos also acknowledged the need to overhaul the patent system and suggested some basic reforms, among them building a database listing prior art. O'Reilly was intrigued.
Soon, the crusader and the capitalist began discussing how to use the Internet to fight spurious patents.
Nine months later, the pair joined other investors in launching BountyQuest, an online company that offers rewards to anyone who can find prior art on certain patents. BountyQuest
has offered rewards ranging from $10,000 to $40,000 for prior art on several controversial new patents, including Amazon's 1-Click, Priceline.com's reverse auction, SightSound's
Digital Download technology, and Double Click's banner advertising method. BountyQuest even offered a reward for information undermining its own patent on "an Internet-based,
broadcast reward service for finding prior art relevant to the validity of a patent."
In January, BountyQuest announced its first four $10,000 winners, whose findings included challenges to a method of online music sampling, a way to control access to an event
venue, and to single-chip network routers. The company says it has received 161 submissions since it began in October. San Diego patent lawyer Fred Berretta wishes the venture
well. The relevant prior art on business methods is seldom found in prior patents, the PTO's usual reference, he says. "To those of us in the trenches defending a client against
[business-method] patents, investigation of the other sources of prior art, such as published literature or evidence of prior use, becomes of paramount importance."
Adds Berretta: "Many patent lawyers are not adept at investigating these nonpatent sources of prior art, which can often require antlike persistence, particularly when dealing with
reluctant third-party witnesses."
For his part, Dickinson "would welcome any sources of prior art being made available" to patent examiners. He notes, though, that the current patent re-examination process allows
third parties to submit prior art directly to the PTO and to stay involved throughout the patent review process.
Meanwhile, Congress responded to the State Street ruling by passing the American Inventors Protection Act of 1999.
AIPA's most controversial provision is the "first inventor defense," which provides relief to companies that would have been prevented from gaining patents on their business
methods before 1998. The law creates an affirmative defense for a company charged with infringing "methods of doing or conducting business" if the company had been using the
method commercially for at least a year before the business alleging infringement filed the patent application.
AIPA also requires patent applications filed since Nov. 29 to be published for public comment. "Those who are critical of the patent office, and who claim that the examiner doesn't
have all relevant prior art available to him or her, can simply send it to the examiner," Oppedahl observes.
Unsatisfied with this legislative fix, Reps. Boucher and Howard L. Berman, D-Calif., introduced the Business Method Patent Improvement Act of 2000, H.R. 5364, in October. The bill
would have shifted the burden of proof on the validity of business-method patents to the applicant and created a presumption of obviousness where a computer is used to implement
a known business method.
The co-sponsors said their bill was meant to start a dialogue over patent law reform. Citing the 1-Click and reverse auction patents, Boucher called on his colleagues to "repair the
system before the PTO awards more monopoly power to people doing the patently obvious."
The bill died in the last Congress, but observers say the current Congress may consider a variety of patent reform measures.
To Samuelson, the best reform would be a statutory prohibition on business-method patents. However, she says such a ban is "politically unlikely since the most organized group on
this issue is the patent lawyers." Because business-method patents mean more business for the patent bar, they would never go along with such a drastic reform, she says. "Barring
that, the Berman bill is a step in the right direction."
Baker of the ABA's intellectual property section counters that Congress could better improve the patent system through appropriations rather than legislation. "If Congress is truly
concerned about avoiding PTO delays and ensuring good patents, they should give the PTO the money it needs.
"Congressional cutting of the patent office budget is all the more culpable," Baker says, "because the office is funded from fees paid by patent applicants," much of which is
"skimmed off" for other purposes. Thus, "The office does not have as many examiners as it should have to issue quality patents in a reasonable time."
"The only crisis we have is the real chance that Congress could overreact in response" to criticism of the PTO, says Atlanta's Kuester. "The patent system will adjust as it always
has adjusted to major changes in the past, but we must give it time."
New Technology, New Approach
Meanwhile, the two nonlawyers at the heart of the debate agree that a patent system designed for nuts-and-bolts inventions must be retooled for the digital age.
Bezos has criticized the PTO for having outdated prior art and otherwise failing to keep pace with technological innovation. He has promised to lobby for reforms leading to "fewer
patents of higher average quality with shorter lifetimes." In the meantime, his company is still suing over its 1-Click patent.
O'Reilly says he is not completely opposed to software patents, having filed a few himself. However, he would "make it much more rigorous" to earn a patent for a software
innovation. As a start, O'Reilly would impose stricter standards for obviousness and novelty. He would also put an affirmative duty on applicants to search for prior art.
Software that facilitates human communication through computers is "very, very close to speech," O'Reilly says, "and ideas about it spread equally rapidly."
"I don't personally see the social benefit of increasing the notion of property into the realm of the soft stuff that is the foundation of culture and communication."
Patently Obvious
Ingenuity is not a prerequisite when seeking PTO stamp
Critics charge business-method patents may cover patently obvious, commonplace or trivial "inventions." In introducing a patent reform bill in October, U.S. Rep. Howard Berman,
D-Calif., cited several curious patents recently awarded by the Patent and Trademark Office:
Inventor Edward Pechter of Valencia, Calif., for example, patented a "method of bra size determination by direct measurement of the breast." U.S. Patent No. 5,965,809; granted Oct.
12, 1999. In pertinent part, Pechter's pectoral procedure gauges cup size "by directly measuring with the tape the circumference of each unclothed breast from the beginning of the
breast mound at one side laterally to the parasternal area medially."
"Cats are not characteristically disposed toward voluntary aerobic exercise," according to Kevin Amiss and Martin Abbot. However, the two Virginians found that a laser beam can
motivate the most sluggish feline. Their patent, No. 5,443,036 (Aug. 22, 1995), covers a "method for inducing cats to exercise [by flashing a laser beam] onto the floor or wall or other
opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats and to any other animal with a
chase instinct."
Tiger Woods may have won the U.S. Open, but the golf phenom might lose in U.S. District Court if he infringes on Dale D. Miller's patented putting technique. Since April Fools'
Day 1997, Miller has had rights to a "putting method in which the golfer controls the speed of the putt and the direction of the putt primarily with the golfer's dominant throwing
hand, yet uses the golfer's nondominant hand to maintain the blade of the putter stable." Patent No. 5,616,089.
Similarly, Serena and Venus Williams could clobber Kevin and George Repper in a doubles match on a tennis court. The Reppers, though, could force a rematch in federal court if
the swinging sisters dared to appropriate their patented tennis stroke. As described in the abstract of patent No. 5,993,336 (Nov. 30, 1999), this technique consists of wearing
kneepads and swatting the ball "either while the covered knee is on the tennis court surface or just prior to the knee contacting the tennis court surface." This innovation "enables a
player to successfully return balls that otherwise are out of effective stroking reach," the patent claim concludes.
While declining to discuss individual patents, Q. Todd Dickinson, immediate-past PTO director, says the office doesn't have a "silliness standard" in evaluating applications.
"People pay their money, and they have a right to have their patents examined," he says.
sulli
RTFJ.
* Inventor Edward Pechter of Valencia, Calif., for example, patented a "method of bra size determination by direct measurement of the breast." U.S. Patent No. 5,965,809; granted Oct. 12, 1999. In pertinent part, Pechter?s pectoral procedure gauges cup size "by directly measuring with the tape the circumference of each unclothed breast from the beginning of the breast mound at one side laterally to the parasternal area medially."
Measuring success one cup at a time. The Linux Pimp
--It's Pimptastic!--
[Due to laws in six states, we are obligated to put the word clients in quotes.]
A few weeks ago, our patent was challenged by another software company. In their legal brief, they claim to have invented quasi-wire-fraud. Indeed.
Hopefully, we can fight off the lawyers (and the DOJ) and keep the patent that is rightfully ours. But we will need your help.
Zero Click Legal Defense Fund
So, what... is this guy saying that the Patent Office isn't hundreds of years old?? What does he mean 'overnight'?? If I'm not mistaken, a govermnent department whose primary focus is technology should be doing a better job of keeping up with the world.
That's all I needed to hear - "Don't blame us, we're incompetent!"
------------
Wise man say, choose your enemies carefully, for you will become like them...
And it should work especially well with the American Bar Association
Send them this a nice little e-mail telling them that you are blind and their public site is violating the Americans With Disabilities Act, as it won't work with an audio browser.
Trolls throughout history:
Jonathan Swift
Well, the real problem with software patents, at least the problem that I have, is that it's essentially impossible to do anything truly original with a computer. I was recently interviewed for a software developer's job where I was asked the question, "Do you have any patents?" and I really had to go over in my mind how badly I wanted the job, and how I would feel about working for a company that was clearly interested in software patents. And it finally came down to me imagining how I would explain the absurdity of a software patent to someone who could fire me.
Basically, I choose an analogy here: patenting software algorithm is similar, in my view, to patenting fiction plots. I have several other interests in life, and I've written three novels of fiction, and one of the old grinds in fiction writing is that there are only about five or so plots that most novels tend towards, and one of the first things you must accustom yourself to as an author is that your storyline will in all likelyhood not be original to you. Having read about five thousand books in my lifetime I can attest that this is by and large true. For every 2001: A Space Odddity there are 100 stories just like it, and they already existed beforehand. Maybe the characters looked a lot different, but when you boil a story down to its fundamental elements there are only so many things that catch people's interest as a drama, and they can all be found in Greek plays and Shakespeare.
So to move this over to the software world, you have to realize that every piece of software you write is created in a language, which is contstrained to a finite number of commands. The language was written, furthermore, by human beings who despite their often-towering genius cannot be too much smarter than you the programmer who is using the language. This may or may not be an important point; the point about there being a fininte number of operations in a language is. That means there are only so many ways in which a function can be expressed.
Computers are complex machines that operate in layers; otherwise we wouldn't be able to use them at all. Below the layer of the user interface is the programming language the interface was written in. Below the layer of the programming language is often the processor instructions which the language translates for the programmer. These are also finite in number; a processor contains only the instruction sets designed into it by the manufacturer, who is also human. These may or may not be patented, but regardless, they are clearly in existence before the software is written; in fact, they must be implemented in a compiler before software can be written to take advantage of them, unless you're writing in assembler.
Therefore, in my view, no software that is written, ever can qualify as unique technology. It is using through two or more layers of abstraction, technology that already had to exist prior to its creation. The only time a software patent would be valid, in my opinion, is if it drove a device that was never previously connected to a computer and does something that has never been done with a computer before.
Anyway, pick apart as you please. This is something I'd like to refine and send to my representative as ammunition for banning software patents period.
One day I feel I'm ahead of the wheel / the next it's rolling over me / I can get back on / I can get back on
Then, the lawyers and other rent-seeking non-productive leeches upon the economy would have to pay a royalty. The more they profit from pain and misery, the more they have to pay. (Before you mod me down for trolling, please go to you library and try to find Black Hole Tariffs and Endogenous Policy Theory)
But to whom? A collective of their victims? To fund community media outlets like Public Access Television or Pacifica Radio? RMS?
As the article reminds us, State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1360 reinstated patents for business models, overturning longstanding principles. Maybe it's time to do the same for mathematical formulas.
Back in 1972, Gottschalk v. Benson, 409 U.S. 63 set forth the principle that mathematical formulas are objects of nature, that exist in the ether and can be claimed by no one as proprietary. But is this really the case? One could say that the wheel or the transistor existed in nature as well, and yet both of those inventions were heavily patented in their day. All inventions are the product of human innovation, but they all take notice of environmental phenomena and bend it to human will. Isn't this what mathematics itself does, no less than any other science?
Computer science is itself a branch of mathematics, one valued at hundreds of billions of dollars annually. As the software industry grows in the future, how will these longstanding principles of patent law be brought into question? The trend has been towards granting more patents rather than less, and look where it's got us: our nation and our economies are more prosperous than ever, and the sciences have been advanced just as our founding fathers envisioned when they wrote intellectual property law into Article I of the constitution. Shouldn't we take every pain to help these industries even more?
"One-click"-style patents are the exception in a world of truly innovative patents. As we start to remove the last vestiges of a paternalistic scheme of government that regulates what may be patented, true innovation will again shine through.
Read the rest of this comment...
The whole motivation of laws these days
seems to reside wholly in the amount of
cash it can produce. Not justice, or
any noble notions like that. Sometimes
I realize that I am not cynical enough.
This is one of those times.
-CrackElf
"Blake is an idealist, Jenna. He cannot afford to think." - Kerr Avon, Star One, Blakes 7