US Software Patents Hit Record High

Aditi Tuteja writes "US Patent and Trademark Office made a new record for the number of software patents awarded in a single year. The agency has issued 893 new patents yesterday. Pushing the total to 30,232 in this year. If this is the trend, more than 40,000 software patents will be issued this year, according to the Public Patent Foundation. The previous record was set in 2004. Several major technology vendors have pledged not to enforce their patents against open source projects. IBM for instance essentially donated 500 patents to open source projects last year. Earlier this year, the US Supreme Court overthrew a prior judgement that required a judge to issue an automatic injunction if he found that a patent was being infringed."

Comments

Thank God

[Mateo_LeFou]

If we didn't have all this intellectual property everywhere, I feel very certain that we as a society would never write a line of code again.

Re:Thank God

[Ruie]

If we didn't have all this intellectual property everywhere, I feel very certain that we as a society would never write a line of code again.

Indeed.

In fact it is the second biggest thing after paper money: paper thought.

Re:Thank God

[The_Third_Man]

Without any intellectual property there could be no code. All code requires some intellectual property. When everything is patented, everyone will be a patent infringer. If you can selectivly enforce your patents, then get as many as possible and wait untill someone else uses the idea and gets rich. Then start enforcing the patent.

Re:Thank God

[Rogerborg]

Multiple Organisms is a ridiculous feminist myth.

Software-Patente sind nicht gut

[Anonymous Coward]

Ich werde stark diesen Patenten entgegengesetzt. Sie hemmen Innovation. Mindestens tun einige Firmen die rechte Sache und schützendes OSS von diesen Patenten.

Re:Software-Patente sind nicht gut

[Jane_Dozey]

IIRC derivatives can be protected under copyright, giving you adequate protection. The problem with a patent is, someone may have had an idea sparked by your algorithm but can't publish or use it as you have a broad patent. The fact that this new algorithm is too far removed from your original algorithm for you to have any claim over it doesn't matter, you can still screw this person over. Copywrite would have meant that this derivative is nice and legal (as it should be given that it's no longer taking enough of your idea for you to stake claim to it) but closer derivatives would not be (hence protecting you). IMHO patents are far too sweeping and last way too long to be of any use in software.

Granted or Rubber-Stamped?

[Watson Ladd]

How many of these are based on methods that are centuries old, like Projective Gauss-Siegel? And how many are just plain obvious?

Re:Granted or Rubber-Stamped?

[tomstdenis]

Whoa, just because an idea has been around for CENTURIES doesn't mean it's has prior art. I mean, clearly $IDEA "on the internet" is a completely new and non-obvious idea.

Hehehe, people should just ignore patents and hope they go away. It's much simpler than getting all in an uproar about it.

Tom

Patent laws and policies, then sell to governments

[Anonymous Coward]

How about patenting laws and social program methods? Then, if a party needs a particular law, they can license it. Imagine, campaigns of the future will be "Democrats to license healthcare law from LawPatentFolksInc Inc." This can also help prevent the passing of asinine laws. Think about it .. just before speeding, one can patent "method of reducing roadway speeding by fining arbitrarily large amount of money".

There's gold in 'dem there holes.

License to punch you in the face

[Anonymous Coward]

Basically the patent system is "accept all submissions, if it's wrong let people contest it in court". But don't they realize what a burden this is on society? Are patent examiners evaluated on how many wrong patents they let through, and fired if it is too high?

Let's think of something else insane. An office where you fill a form and for $1000 you get official permission to punch anyone you want in the face. Insane? Yes. But is the patent system less insane?

Any opensource projects using those IBM patents?

[Anonymous Coward]

In other words, does anyone know if any of those IBM patents were good for anything? Because we all know that most patents are useless and IBM probably lets at least that many patents lapse every year to save patent maintenance fees.

We did it!!!

[illuminatedwax]

Pop the champagne and unleash the balloons!! We finally made it past 40,000! Congrats to all those patent workers working overtime, scouring through all that prior art to make sure that it was a solid 40,000 patents, congrats to the management for finally making a system to promote real progress, and finally, a huge congrats to the inventors! You guys really did all the hard work, discovering 40,000 things that no one would have ever thought of if not for your hard toiling work! Now it's time to reap those benefits as you take your inventions and begin building factories to build or use those inventions of yours! We wish you could give you longer than 23 years, but with the market as it is now, everyone's going to want a piece of the action eventually, and it's only fair that we give them a chance.

Here's to another year of unprecedented technological improvement!!! Wow, 40,000... Who would have ever thought the human race was capable of such wondrous achievements?

Re:We did it!!!

[The Real Nem]

Look on the bright side, at least we're getting all this patenting nonsense done with and out of the way all at once. In another 20 years there will be no more software patents because everything patentable, or at least worth wile patenting, (even the stupidest most obvious of ideas and interfaces) will have expired. Then we'll be free to bath and bask on two centuries of wealth wasted on two centuries of greed. Perhaps only then will true innovation begin.

I'm dreaming again.

Re:We did it!!!

[Anonymous Coward]

"Children with AS [Asperger's Syndrome, a type of autism] may be extremely literal and may have difficulty interpreting sarcasm."

Source: the bathroom wall. Personally, however, I find it more likely that you're just socially retarded.

Comment removed

[account_deleted]

Comment removed based on user account deletion

"Pledges" are worthless

[kcbrown]

Several major technology vendors have pledged not to enforce their patents against open source projects.

Such pledges aren't worth squat. While they may wind up in the record and thus could be used by open source projects as a defense in court, the bottom line is that one would still have to go to court to present that evidence. Against a well-financed corporation, that's likely to mean little, especially since some judges have even gone so far as to disregard prior art in order to uphold a patent claim.

The bottom line is that the court of law is not a rational venue, but instead seems to be a place to roll the dice, where the odds are stacked heavily in favor of whoever has the most cash.

That means that open source projects are going to be very vulnerable to patent lawsuits, even in the face of a "pledge" by the patentholders that they won't sue.

Re:"Pledges" are worthless

[rjstanford]

It gets worse. What you have here, is a bad idea. However, the people pushing and benefiting from the bad idea are effectively "buying off" their nosiest critics. Selective enforcement is just plain wrong. All it basically says is that software patents are meaningless... unless we don't like you, in which case we can shut you down. Kinda like (although not as bad as) traffic rules that everyone knows won't ever be enforced... unless you're a minority from out of town. But hey, its legal, they're on the books, right?

dupes?

[tomstdenis]

I'm waiting for the case of N peeps with vaguely overlapping patents [N > 2] and then they can have fights about it. I'd pay to watch that... wait...

I don't know why people are all proud about their patents. Places like IBMs hand out awards and framed pictures of [first page] the patent to inventors. Most of the time it's like "method and apparatus of doing something obvious, on the Internet." When patents are so easy to come by the value of them should be nil, or at least you'd like to think that...

Tom

Re:dupes?

[Rix]

It works, more or less, between large corporations. Patents are used essentially as nukes, with the politics of MoD. Odds are they'll each have patents they could use against each other, but there's a tacit agreement that you won't use yours and I won't use mine. (Destructively, at least). That all falls apart when a large company feels threatened by a small one, without a stash of patents to threaten with.

Re:Any opensource projects using those IBM patents

[larry bagina]

I know postgresql at one point unintentionally used one of IBM's patents. They removed/rewrote the code though, since they use the BSD license. Using IBM's patent would prevent people from close-sourcing it without negotiating a license from IBM.

Denial of Service

[Anonymous Coward]

Our current software patent practices make a mockery of the true intent of the patent system. Nobody working on any software project would be foolish enough to go checking to see if the software infringes because: (1) Odds are it probably does, and (2) if you proceeded without licensing all of the "inventions" that you "infringed" on, you are then liable for triple damages for willful infringement.

By allowing this state of affairs to continue, truly innovative patents are harmed because of the extreme disincentive to avoid willful patent infringement. The biggest losers are open source projects, since the patent trolls have free access to the source code to examine for violations. It seems that the patent system has been reduced to a risk to be mitigated against for many companies. Better stockpile some bogus patents of your own so you can fend of the trolls with patents of your own.

Time fails me to even get started about "Business Process" patents. Remember the Amazon 1-click patent anyone?

Re:Simple question

[aeoo]

In general I'm pro patent and copyright but I may be facing a real problem with a new project. How can I be sure I'm not infringing on some one else's patent? Is the first sign the lawsuit? There's no real system in place for spot checking so anything I do in software development may be in breach and I have no way to know it. I want to support the system but with potentially millions of patents in place it's going to be hard to avoid infinging. We're a small company so a lawsuit is french for bankruptcy.

If I told you that such system for spot checking could not be feasibly created, would you still be pro patent?

In other words, does the pragmatic usability of idea affect your opinion about it? Or do you like some things, no matter how well they turn out in real life? (In other words, are you an idealist?) It's a real question. I'm not trying to imply anything.

Are you pro patent, then, in hopes of such system coming online soon? If there is no obvious reason to hope for such a system becoming available soon, then why are you pro patent?

Ever filed a patent application?

[mikefocke]

I can tell you that it is not a rubber stamp process as ours took well over 16 months and several submissions, back and forth questions and answers, clarifications and justifications. Probably several hundred pages in total and I shudder to think what it cost in lawyer fees. The USPO examiner did his job and really made us work for it, narrowing the claims and causing us to better differentiate from prior patented software.

Re:Ever filed a patent application?

[WebMink]

So, it's up to the courts to sort out the question of prior art. The common complaint here on slashdot (and in my own heart) is that the USPTO should check prior art... but now that I think about it, that seems inefficient. It's inefficient because most patents will never come to dispute, and hence are irrelevant. Why spend a gabillion dollars bringing in the necessary expertise, until you know that it actually matters (i.e. is actually challenged)?

Seems to me that the main problem here is that there's no meaningful penalty for ignoring prior art. One idea that seems easy but I've never seen pursued is for the law to be changed to treat a failure to cite prior art as perjury. Then, should a successful prior art case be prosecuted against a patent, the applicant would be subject to fines or even imprisonment. This simple change would rebalance the system and result in far fewer lame patents with obvious prior art.

Re:Ever filed a patent application?

[mavenguy]

Well, there already is a Duty to disclose information material to patentability. The Oath (or Declaration) requires the inventor(s) to swear or declare that he/they is/are the "original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought." There is also a general Federal law that prescribes fine and/or imprisonment for up to 5 years for anyone who, in Federal Government proceedings knowingly and willfully

1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
2. makes any materially false, fictitious, or fraudulent statement or representation; or
3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

In the recent decades it is common practice for patent applicants to submit an "Information Disclosure Statement" where they list prior art they submit to satisfy the foregoing laws and rules. And it's not uncommon to find an examiner using art cited by applicant in formulating prior art rejections. The real question, though, is one of state of mind of the applicant, i. e., the old question if "What did you know and when did you know it?" In asessing applicant's duty to disclose relevant prior art, how much effort to find relevant prior art must applicant show? It is not totally out of the question, even in this age of extensive internet search tools and data sources, that some public, but obscure, piece of prior art might exist, but not readily available. If someone only unearths the reference after searching for hundreds of hours (and quite possibly going to many dead tree sources or making hundreds of phone calls), are you really going to fine/throw in prison the applcant even if they can show they did make a decent search? And a borderline situation often exists in areas that have rapid development, where ideas can be published and spread very quickly. At what point does this become so commonly known that the applicant must be presumed to have known of it prior to the filing of the application, and thus be liable to criminal sanctions?

There's even a more complex situation where the question of obviousness is involved, as it most frequently is. A patent (or application) claim is unpatentable if it describes "subject matter as a whole [that] would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains" (35 USC 103). Who makes the judgment of what this ficticious person of ordinary skill in the art would know, and how he would judge the claim? It's a question of opinion to which different people, even with some credibility in the field, can disagree. What if the applicant, has the same prior art to consider, and decides it's not relevant, and thus, fails to cite it, but later some "expert witness" disagrees and states that, at the time of the invention anyone in the art would have known this? And, remember, the issue here is not that the claim is properly invalidated by this prior art, but that the applicant knew of the prior art, but did not disclose it; was this a good or bad faith omission?

It's hard enough just making the patentable/unpatentable decision under the current law, and it's a good idea to cite prior art even one is almost certain it's not relevant to the patentability determination, but routinely criminalizing such an omission seems a bit over the top.

Re:What's really scary is...

[back_pages]

not that so many patents are issued. If need be, you can strike them down, though it is costly. But it's possible. Once we move to the first to file method of patent law, these numbers will seem quaint. At least with first to invent you have the opportunity to right a wrong.

I think you may misunderstand the first to file vs. first to invent situation.

Under both systems, if you have no patent, and somebody with a patent sues you for infringement, you can invalidate the patent by demonstrating prior art. This is exactly the same under either system.

The ONLY situation where first to file vs. first to invent matters is when you have a patent application and someone else also has a patent application for the SAME INVENTION. Note that NEITHER of you actually have a patent yet. In first to file systems, the person who filed first gets the patent. In the US with a first to invent system, we hold an "interference" proceeding to determine, then and there, which one of you invented first. This is extremely expensive for everyone involved, can take well over a year to straighten out, and is of questionable benefit.

Consider the alternative - you invented it first and can prove it, but someone else filed first. You won't get the patent, however you WILL have some valuable information: You can probably invalidate that patent with hardly a struggle. The patent that issued is far weaker, if not abandoned altogether. You don't get the patent protection you may have deserved, but the patent that was issued to the other guy is crippled. The subject matter of a patent that has been abandoned or invalidated becomes public domain, and therefore free to use by anybody.

The only people who win with a first to invent system are those people who truly seek their right to exclude but, for whatever reason, have delayed about filing the patent paperwork. There are many people who think we'd be better off harmonizing with the rest of the world and using a first to file system.

Better Headline:

[FFFish]

US Software Patent Examiners Hit Record High.

Because, judging by the kinds of patents they're approving these days, it's farqing weed city down there at the patent office.

Re:Simple question

[back_pages]

To answer the original poster's question, I'd suggest either buying liability insurance, hiring a patent attorney to investigate his liability or patent suit, or both.

When starting up a new business, it's common practice to hire an accountant. Managing your finances, withholding from your employees' wages, and filing your taxes is complicated. If you screw up, it could destroy your company. It should be done by a professional.

Funny, all of those arguments apply to intellectual property as well.

Of course, if he wants to completely avoid being sued with a US patent, he could relocate to another country and refuse to do business with the US. You can't be sued where there is no jurisdiction.

Patents are a cost of doing business in America. You can adjust for that, or you can pray you don't go down in flames.

I agree with the parent that no spot checking system could be implemented.

You bet

[Cracked Pottery]

It's statistically inconceivable that 40,000 original, unique, useful and non-obvious methods would be created in a year. Most of them are probably garbage. If the PO did it's job, there might be a couple of dozen methods that would qualify under the Constitutional definition of patentability.

Good! Patent everything!

[NotQuiteReal]

The sooner everything is patented, the sooner the patents will run out.

Not only will every thing then be up for grabs, but it will all be neatly documented at the USPTO!

Wake me up in 20 years.

A related question - if someone suspects you of infinging their software patent, but you claim closed source, trade secret status, how can they prove you infringed, if you don't allow them to reverse engineer your software, under penalty of the DMCA?

Re: perjury not a solution

[kansas1051]

One idea that seems easy but I've never seen pursued is for the law to be changed to treat a failure to cite prior art as perjury. Then, should a successful prior art case be prosecuted against a patent, the applicant would be subject to fines or even imprisonment.

The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.

Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for perjury as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?