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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."
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.
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.
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.
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.
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).
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?
True enough, but just because he's "got a dog in this race" doesn't preclude him from having a useful view, no?
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.
"From the depths of my skeptical and rationalist soul, I ask the Lord to protect me from California touchie-feeliedom."
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"
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.)
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