Google's Patent Lawyer On Why the Patent System Is Broken

The San Francisco Chronicle features an interview with Google's patent counsel, Tim Porter, who argues that "... what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax. Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense. Patents were written in a way that was vague and overly broad. (Companies are) trying to claim something that's really an idea (which isn't patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand. They're being used to hinder innovation or skim revenue off the top of a successful product." Porter is speaking in particular about the snarls that have faced (and still face) Android, based on Microsoft patents; he blames some of the mess on a patent regime where "you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements."

Comments

Preaching to the choir?

[Naerymdan]

Nothing new here; forget for an instant that it's our beloved Google behind this lawyer, and it's simply someone under patent fire saying that patent aren't fair. Not to say I do not agree, but if Google was at the top patent-wise, would we see that article?

Re:Preaching to the choir?

[jhoegl]

That thought did run through my mind, but I really do not care. I hate software patents because they screw over the "small business" everyone seems to be so worried about.

Lets just say I write some code, this code turns out to be a part of a piece of software for a small company. The small company releases it and 5 years later are sued because the code infringes on a patent that no one knew about.

The funny thing is, the code was simple enough that I could have written it a different way avoiding this issue. But because the small business didnt have lawyers out the butt to find this out.

The question I wonder is, did the company reverse engineer the software to find out? Isnt that illegal as well? Why were they doing that?

Re:Preaching to the choir?

[RazorSharp]

Ah, the old Clockwork Orange argument: an action isn't good without good intent.

When it comes to the patent wars, I think those on the losing end of things are bound to be the ones to petition for reform. We might as well support them, regardless of what drives them to this position.

yup

[arbiter1]

Most new products come out and they don't even know they violated patents for years in most cases cause companies that hold the so called patent even know they could claim anything til years later.

Re:yup

[Anonymous Coward]

The system you describe is utterly ridiculous. It requires that anyone creating a new product broadcast detailed information to their competitors, while also requiring patent holders to maintain a constant vigil where they have to read the perhaps 10's of thousands of posts day to see if anything from there portfolio is being infringed. Do you realize the manpower that would take? For a company with a large number of patents they would require dozens or even hundreds of reviewers, each of which would have to have sufficient education to have the entire portfolio memorized, while also understanding the detailed technical specifications of myriad products.

It would be far easier to simply modify the patent system so that obviousness and prior art is given much more weight patent examiners.

Re:yup

[bloodhawk]

The current patent system is ridiculous, however your suggestion takes that ridiculousness to a whole new level, by some chance do you work for the patent office? that is the type of even more broken system I would expect to come out of there. You want companies to broadcast their plans to their competitors? you want people with patents to read through what would be thousands of product ideas a day? hell you would need a team dedicated 24x7 to read all of the intended product developments.

Re:yup

[FyRE666]

Exactly - i wrote that to hilight just how bad the current situation is, by reversing it (I thought I'd added enough sarcasm to the comment, but still) :

"you want people with patents to read through what would be thousands of product ideas a day?"

This, in a nutshell is the problem currently, but in reverse, with the person WITHOUT the patents having to read through potentially 10's or 100's of thousands of vague patents, AND understanding all of those patents, before having any confidence they can go ahead without being accused of criminality.

"hell you would need a team dedicated 24x7 to read all of the intended product developments"
=
"hell you currently need a team dedicated 24x7 to read all of the vague product patents"

Still is bad

[Anonymous Coward]

The issuance of patents is *still* bad, it wasn't just some period in the past.

The problem stems from the core software patent problem, trade secrets work so well in software's case that no patent examiner can be aware of the body of prior art that exists. Likewise he can't know if it's an invention, or just an incremental change from what already exists.

And he may be fooled that the patent office has changed its spots, it hasn't. It still defaults to issuing patents when in doubt.

Re:Still is bad

[billcopc]

That is the fundamental problem. To the average human, a patent is total gibberish. To an expert, it is still gibberish. The only people who can "read" patents are lawyers, and they lack the subject matter expertise to make any real sense of it.

I say patent writers need to "sell" the patent examiner on the merit of their patent. You want an exclusive license to extort the world with an idea ? Ok, prove to me that you've actually created something new. If it's a tech patent, it needs to be reviewed by an examiner with at least 5-10 years of experience in the field. That way they will be better equipped to tell if the patent covers something trivial.

If the greedy hypercapitalist swine who support the patent system aren't willing to abolish it, then we should at least require that the patents be written in such a way that a novice can understand it. It's like usability testing. I don't expect my 80-year-old grandparents to understand (for example) FTP, but even a first-year CS student should be able to figure out from the first paragraph that it is a file transfer protocol that copies bits from one networked computer to another. By extension, an examiner with 5-10 years of applied experience should be able to identify which parts of a proposed file transfer protocol are painfully obvious, and which parts are innovative and potentially patent-worthy.

I personally can't think of any such innovations over existing protocols, but that's why I don't hold any patents. To a one-trick tech wizard like me, everything is obvious, as it should be. Just like my father thinks I'm a retard for not knowing that light flutter in my car's hum is caused by a bad fuel line pump, because he's a freakin' mechanic - it's obvious to him. We need to ditch obvious patents once and for all so the lawyers can find something better to do, and leave us experts in peace so we can start innovating again.

Re:Still is bad

[Anonymous Coward]

I was with you up until the phrase "greedy hypercapitalist swine" which made me stop paying attention, which is a pity because when I went back and looked at it you started making sensible points again. A hint for the future: try and avoid introducing over-zealous adolescent "political" faux-terminology into otherwise sensible posts. In this situation, "corporations" would have worked just as well, without revealing your clearly strongly-held biases. Shielding your biases while making a reasoned argument is an extremely useful, and powerful, tactic to learn.

Re:Still is bad

[dkf]

If the greedy hypercapitalist swine who support the patent system aren't willing to abolish it, then we should at least require that the patents be written in such a way that a novice can understand it.

Not a novice. Someone with 5 years experience in the field, so that they count as someone "with ordinary skill in the art". That has always been the whole point of a patent, in any field, and it's desperately wrong that some patents are issued which do not make things clear enough; such patents should be struck from the record and the cost of any related proceedings pushed back on the (ex-)patent holder.

I'm not saying there should never be patents on software — sometimes you see something that is a genuine massive innovation, such as some of the compression or security codes where there have been times when the state of the art has advanced hugely when others thought it impossible — but they're issued too often for too little and are too unclear. I suppose it would help if software patents had to include all relevant source code as part of the patent (with all claim to copyright ceded) so that when the patent expires the exact protected method would be free to use for anyone; that would be much like patents in other fields.

Isn't it ironic?

[scottbomb]

Some of the companies that are most innovative are doing everything they can to stifle innovation.

Re:Isn't it ironic?

[JoeMerchant]

I think patents make a lot of sense, for some things and not for others.

On balance, there are a lot of really bad software patents, simply because you can sit down with any one of a hundred people "skilled in the art" of whatever area of software and ask them "is this obvious?" and they will almost always say yes, though when you ask "why hasn't it been done before?" the answer comes back a little more murky, usually something about it just not having made sense before because of the user base or available hardware or whatever, and during the period of 1995-2005, the patent office seemed to be in rubber stamp mode for software.

If you go back to something like barbed wire, there were probably a half-dozen wire manufacturers crying "oh, that was so obvious, we were about to do that" when the patents issued, but today with software, you literally have millions of individuals who are capable of implementing these things that are getting patented - it's a different scale, and the standard for obviousness and prior art should be equally higher.

It's not just software...

[JoeMerchant]

software patents are written by lawyers in a language that software engineers don't even understand.

That's been true across many industries, at least since the 1970s (which is as far back as I ever researched prior art...)

The real indicator of what's broken in the patent system can be read in the patent numbers themselves... in 1992 we were at 5 million and something, since the start of the United States Patent Office, now we're roughly double that number?!

Sorry, everything useful hasn't already been invented, but something is just out of synch. I think an ex-CEO of mine (ex high school football quarterback too) summed up the problem in his own words: "Our competitors were granted 62 patents last year, while we got three, can anybody tell me what that means?" I'm told there was stunned silence in the boardroom. "It means that WE'RE 59 BEHIND, now let's get going!" Patents have been turned into fuel for lawsuits, and they're reaching a scale where even a crappy little $100M/year company can hire a small army of patent attorneys to stock their powder magazine.

Why should patents be special?

[afabbro]

you don't know what patents cover until courts declare that in litigation

Same thing is true for civil liberties.

Same thing is true for torts and liabilities.

Same thing is true for criminal law.

Etc. It's the nature of our English law system. It provides extreme flexibility at the cost of being vague.

On the other hand, various continental systems are much more exact, but less flexible.

Of course, if every time there's a question of law, it takes hours and hours to research (at $500/hr), lawyers tend to get rich. Which means the chances of reform in the US are nil.

Re:When lawyers speak, they are advocates

[aiken_d]

This. There is some value in well-articulated arguments and having a company with Google's clout bringing attention to the patent mess, but the moment Google stands to make more money from the system, this same guy will cheerfully advocate the other side. Which is fine, it's his job.

Re:When lawyers speak, they are advocates

[williamhb]

Tim Porter may be a nice guy and all, but if it was Google with all those so-called bogus/lax patents he'd be up there talking about how the patent system is fine and the problem really is more that the enforcement process depends on endless litigation and how the determination of infringement needs to be more streamlined.

He's a lawyer, his job is to be an advocate/mouthpiece for his employer's interests.

They (and most companies) play both sides of the fence. At the same time as saying how bad patents are for impinging on their products, they are buying as many companies with far-reaching patents as they can get their hands on -- "Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio", Larry Page. It's a genuine tragedy of the commons -- many of the same people who think patents are bad news are also having to go out and register or acquire them at ever increasing rates so they are armed with them. And the first person to lay down their patents and walk away would be the big loser (as Android nearly found out with its previous strategy of not having many patents, and wound up on the wrong end of so many patent lawsuits).

Re:MS vs. Apple

[JackAxe]

I just need to comment on one area.

I develop on both iOS and Android. I've been using Macs for decades and still buy them as my primary workstations. Anyways, no, Google did not rip of the iPhone or the iPad; no more than Apple ripped off Google, which is pretty obvious for anyone that works with both.

Re:I'm glad to see concern

[jonwil]

Microsoft and Apple may not support the system as it stands. But anyone who thinks either company wants the kind of patent reform that many others in the tech industry (including the Google guy posting in TFA) want is deluded. Both companies would think nothing of spending whatever it takes to lobby against any bill that actually made software un-patentable or that tightened up the criteria for what is and isn't patentable in the software field.

Re:When lawyers speak, they are advocates

[kermidge]

True enough, but just because he's "got a dog in this race" doesn't preclude him from having a useful view, no?

Re:I'm glad to see concern

[jonwil]

Microsoft makes big money using its patent portfolio for lawsuits and FUD surrounding Linux and Android so it has no incentive to push for reform that makes those patents easier to challenge, harder to get or harder to sue with.

Apple right now is on a mission to crush Android in any court that it can get a hearing in, they dont want to see change that makes it harder for them to do that.

Re:When lawyers speak, they are advocates

[Riceballsan]

Agreed, but you also have to look at one thing. Google is not the company with tons of bogus lax patents, and from my observations that seems to be more or less by choice. Does it seem imposible that a company google's size with google's legal budget, that they could not have say squeezed through enough pattents to keep microsoft in court for years trying to fight to get bing across. Or say patented their circles following feeds etc... in a way that facebook would have had to wait a few months for a court to invalidate patents before facebook could match every feature of G+. I agree a lawyer speaks in the interest of the client, but I do have to point out, the client specifically chose not to be a patent troll. If someone asks for harsher sentances for serial killers, is your first response "Yeah but if he were a serial killer he'd probably think differently"

Re:MS vs. Apple

[sonicmerlin]

They ripped off the UI and hardware design. Before the iPhone was revealed all Android prototypes were Blackberry rip-offs. They abruptly switched course after Apple's reveal. Now they're ripping off Windows Phone OS with parts of Ice Scream Sandwich's interface. Google's been pretty shameless about this whole thing, especially abandoning their stance on net neutrality in order to get Verizon's backing of Android. As much as it pains me to see it, Google is floundering. They're like the Jobless Apple of the 90s. 300 different projects with wonderful technologies wandering all over the place... with almost nothing to show for it. I think the employees are coddled and they lack proper leadership or vision.

They spent $12 billion on Motorola to defend Android, but it won't matter in the long run. Google would have been far better off bidding to win in the 700 MHz auction in 2007 and building a nationwide wireless network. Wireless margins are pretty huge. In fact, they could spend an order of magnitude less money by buying up Clearwire right now, which is at a record low market cap. Otherwise what do they have to show for the tens of billions they've invested into Android? Most of their handheld web traffic comes from iPhones anyways.

Re:When lawyers speak, they are advocates

[swillden]

Tim Porter may be a nice guy and all, but if it was Google with all those so-called bogus/lax patents he'd be up there talking about how the patent system is fine and the problem really is more that the enforcement process depends on endless litigation and how the determination of infringement needs to be more streamlined.

He's a lawyer, his job is to be an advocate/mouthpiece for his employer's interests.

They (and most companies) play both sides of the fence. At the same time as saying how bad patents are for impinging on their products, they are buying as many companies with far-reaching patents as they can get their hands on -- "Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio", Larry Page.

You omitted the last half of that quote: "which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies." What he was saying was that Google's new patents will increase competition by helping to prevent MS and Apple from shutting Android down, and I think his point is indisputable: Allowing MS and Apple to kill Android would reduce competition, so preserving android increases competition.

I truly don't think Google plays both sides of this fence; everything I've ever seen from Google's leadership decries the patent mess as a problem, and explains Google's own focus on acquiring and growing patents as a necessary evil. AFAIK (and I have paid attention), Google has never asserted any patents against anyone, except defensively.

I think Google really would prefer to change patent law and get rid of all these crap software patents -- or even all software patents, period. I think this is as much reflection of Google's arrogance as Google's altruism -- Google believes that given a level field they can beat the competition in any area they focus on. But I think there is actually a large dose of "good for society" thinking as well. You have to remember that fully half of Google's employees and nearly all of Google's management are software engineers, and the vast majority of software engineers think that software patents are bad for innovation, and software engineers love cool new technology. Google's engineers are no different all the way up to and including Sergey and Larry.

(Disclaimer: I'm a Google engineer, but all of the above is based on public information plus my perception of general attitudes within the company.)