Interview With 'Idiot' Behind Key Software Patent

An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"

Comments

Re:Double standards and people

[bkr1_2k]

Or they change their opinion based on more information. Not all people are underhanded or double-dealing. Some people just learn from their (and others') mistakes.

Errors in the Article

[Grond]

There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.

"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."

This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.

"End the venue shopping for lawsuits"

The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).

"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"

Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.

Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.

Re:Errors in the Article

[_0xd0ad]

There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection.

So? Those are not mutually exclusive scenarios. A large number of patents denied for obviousness doesn't mean there aren't also a large number of obvious patents being approved.

Moreover, the obviousness analysis is based on prior art.

Great, so you just proved the original point, the point you were trying to argue with. The USPTO focuses too much on prior art. Even when they deny a patent for "obviousness", all they're focused on is prior art.

Re:Errors in the Article

[Theaetetus]

Yep, all of those. Plus, he's got a few conceptual errors:

"Patents are meant to protect innovation so they should be held to a high standard."

Patents aren't meant to protect innovation at all. Patents are made to grudgingly protect an inventor's rights, for a limited time, in exchange for public disclosure. The alternative is that the inventor still innovates, but keeps his or her innovations secret and exploits them behind closed doors. Others then have to duplicate that effort, wasting time and money.
Trade secrets do a much better job of protecting innovation, since they last forever. But that's bad for society, so we want to encourage public disclosure of innovations, so that the overall pace of innovation is accelerated. But we, as a society, couldn't really care less about any individual inventor's rights.

There's another, more important one, that I think the author got completely backwards:

We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:
This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome.

This is something the CAFC and Supreme Court have been wrestling with, but they haven't fully enunciated their reasoning yet. I think it's pretty clear if you look, not at the patent, but at the remedy for infringement. If you have a patent where the claim can be done fully in your head (1. A method for determining a summation, comprising adding two and two, and realizing the result is four) or on paper, then it's possible to infringe by thinking. One of the remedies for infringing a patent is an injunction, preventing the defendant from performing the patented method until the patent expires... so, stop thinking. I patented imagining a pink elephant. Don't think of a pink elephant. Wait, you just did! You owe me more money now.

This applies to software patents, business method patents, diagnostic method patents, etc. In the latter, a method that claims "determining a patient has an elevated blood count of chemical X; realizing the patient has disease Y," can be infringed simply by reading an example in the patent specification itself!

The courts have realized that's a problem, and that's why they started requiring a physical machine or transformation in Bilski. If the claim says "determining, via a testing kit, that the patient has an elevated blood count" or "adding, by an FPU of a computing device," then it's impossible to infringe the patent in your head, and injunctive relief is possible: think all you want, do whatever you want with pen and paper, but don't use a testing kit to measure this chemical or use a computer to determine this value.

Re:Double standards and people

[Baloroth]

Or, they don't have double standards, but in order to succeed at business they have to do things that they know actually harm business and innovation, because that is how the system is set up and they can't change it. Which seems to be what happened in this case.

It's a bit like the two-party system in the US. Neither party may be very (any?) good, but since one of them is going to be elected, might as well vote for whomever you think is better than his opponent.

Re:Double standards and people

[Anne_Nonymous]

And the other 25% is just a rounding error.

Re:Double standards and people

[Carewolf]

I see no double standards. Handicapping yourself does not improve the world. If you want it to change you need to play by the rules and work to change it, just ignoring bad rules will not make them go away.

Re:Double standards and people

[vlm]

...which begs the question: Why can't the patent office employ a few people who are skilled in the art of software?

No, it doesn't beg the question. A more proper way to do that, would be to state that it would be a good idea to hire computer scientists because it would be a good idea to hire computer scientists. It's a very thin line between that and circular reasoning, which I might have crossed.

Whatever, anyway, the reason why they don't employ CS grads or even IT grads, is they don't employ many grads at all. Its about like the ratio of title examiners to real estate purchasers, or the ratio of grocery shoppers to grocery checker employees. There just are not many of them, compared to the scope of human knowledge.

Re:Double standards and people

[Yvan256]

Still using that Pentium CPU?

Re:Two reasons software patents should not be

[plover]

OK, so let's trot out the old chestnut of pharmaceutical patents. Let's say I invest $100 million to do the research needed to create a new drug, I create it, and the doses cost only $1 to make. Extrapolating from current demand, I will sell a million doses in the next 20 years while my patent is in force. I set my price at $200 per dose; with the costs being $1 in manufacturing and $100 in repaying my investment, so I'm making $99 in profit per dose. After 20 years, I have $99 million dollars in profit.

If I don't have patent protection, as soon as my drug hits the market someone will do an analysis and make a generic clone of it, selling it for $100 a dose, also settling for a $99 profit margin. They would take over 99% of the business from me, leaving me stuck with the tab for about $99.99 million dollars in research investment.

Would any pharmaceutical company ever do research again? Would anyone be trying to cure anything if they thought it would bankrupt them to do so? My guess is that a few celebrities will be affected by some diseases and create "foundations for the cure" efforts on a one-off basis, but in general, innovation in drugs would die without the patent system.

Of course, this is a simplistic picture, and the real world of shady marketing, fraudulent studies, suppressed side effect reporting, drugs to treat imaginary ailments, and all the other unethical stuff the pharmaceutical companies do certainly complicates things. And there are ongoing costs to the inventors and manufacturers of the drug: lawsuits over side effects, wrongful deaths, etc. But at its core, without the patent system these drugs would never be created.

So if we've established that pharmaceutical patents are necessary to drive research that may benefit us as a whole, then at least part of the patent system should at least be salvaged and not dismantled.