Patently Unpatentable: Federal Circuit is Trying to Develop New Test For Patentability

20. October, 2012

One of the old problems for patent office or a court is to determine whether a patent is patentable. “‘Laws of nature, natural phenomena and abstract ideas’ are not patentable under US law – but their particular inventive application is.” (source)

But with lawsuits like Apple vs. Samsung (great coverage on groklaw), it’s becoming obvious even for the hard-core patent defenders that things must change.

The Federal Circuit is now trying to come up with a test that answers whether software is patentable or just an abstract idea.

Maybe they should check this article on groklaw: What Does “Software Is Mathematics” Mean? – Part 1


Patently Unpatentable: Ask Patents

25. September, 2012

Ask Patents is a new website by the guys at StackExchange with the goal to answer questions about the patent system in general and to help finding prior art for certain patents.

From the FAQ:

Ask Patents – Stack Exchange is a collaboratively edited Q&A platform for patent experts, inventors and citizens who wish to participate in the US patent process. Its primary purpose is to help individuals:

  1. Solicit help finding prior art that might apply to a patent or application
  2. Get answers to hard questions about specific patents
  3. Ask questions about the US patent system or process

Ask Patents – Stack Exchange was designed in collaboration with the United States Patent and Trademark Office (USPTO) and Peer To Patent, whose efforts empowering citizens to help find prior art inspired the crowdsourced approach you see here. We also worked with Google to leverage the power of Google Patents Search and their new Prior Art Finder Tool.

If you care about patents or work in the software industry, have a look.

Patent Battles are a Ridiculous Abuse of Intellectual Property Law

6. July, 2012

A human with a brain. What has the world come to? 😉 In his blog post “Capitalism“, US-Judge Richard Posner argues that “statistic indicates that capitalism is a necessary condition of economic success rather than a sufficient condition.” But sadly economists like Alan Greenspan have been fallen for the delusion that “capitalism was a self-regulating system; market failures were, with few exceptions, either self-correcting, or less harmful than regulation aimed at eliminating them.”

We all know where that lead to. Power needs to be controlled by an independent force. Capitalism doesn’t work without democracy and democracy, we all know only too well, works only with a balance of power.

I agree with him that the patent system is a good idea for pharmaceuticals (as I said before).

But software patents have become just a weapon. Posner says: “It’s not clear that we really need patents in most industries.” And unlike in drugs, each piece of technology is protected by a long list of patents. The smart phone in your pocket is probably protected by thousands of them because each piece of it is “protected” by hundreds of individual patents.

Hopefully, more judges follow his lead and put an end to legal but unethical behavior.


Re: Curing the Problem of Software Patents, by Michael Risch

16. June, 2012

Michael Risch wrote a longer piece on software patents and why we should try to make software patents work: Curing the Problem of Software Patents

Here is my answer:

I think the main problem with the patent system isn’t the ideas behind but that some people have started to abuse it. And those who didn’t are being driven to join the brawl for no other reason than protect themselves.

You quoted “Software is hardware in every sense that matters for patents.” Let’s have a deeper look at that. Software is a formalized way to write recipes (as in cooking). Software development is a translation process (as in language interpreter). We take ideas from customers and turn them into detailed instructions to be executed by a moron. A human could do it but since it would be boring, we use a computer. Note that software isn’t mathematics – it’s language (as in English). It’s very limited (because the computer is so very dumb) but we’re more authors than mathematicians.

Now, my questions are:

  1. Can you patent the work of an online interpreter?
  2. How about the words that come out of her/his mouth?
  3. What about the words that she/he hears and translates?

My answers:

#1: No. The process of translating something is a craft. Crafts as such are not patentable.

#2: Since the interpreter doesn’t add anything of value to the input (they should stay true to what is given them), the output can’t be more or less than the input. It’s the input in another form but by itself, it doesn’t make the input more or less patentable.

#3 This leads to the question: Can you patent a recipe?

And the answer here is, sadly, yes. Which leads to the question: Can you patent any recipe?

No: The recipe has to be, well, “outstanding” in some way. Unfortunately, there is no universal standard what “outstanding” means. When I teach a newbie, they will think my methods are outstanding but they are just by relative comparison of what they know and what I know.

Since “outstanding” doesn’t seem to be a good tool to make a decision, what else do we have?

Damage. One of the roots of patent law is the idea to bring more justice to the world. It was invented for the specific purpose to protect the work of “helpless” inventors so they wouldn’t be ripped off all the time.

This makes sense if you, say, develop a new medicine. As of today, you need to spend around one billion dollars for a new medicine. Without patent law, it simply wouldn’t make sense for corporations to take the involved risks, so it makes sense to apply it here.

But software patents are in a completely different league. They cost $20’000 or less to produce and they can cause hundreds of billions of damage when they are used as a weapon – which is the sole and main purpose of software patents.

Since software patents are used solely to damage society as a whole (forcing companies to invest in them, costs of defending yourself against a lawsuit no matter if it’s justified or not, costs of canceling abusive patents, costs in lost revenue when you can’t sell your product because a competitor wants more market share), they need to be outlawed.

If you fail in this task, then no new computer related products will be sold in the USA by … well … 2013 because everyone will be suing everyone and all money will flow into courts and to patent lawyers. No more software development will happen because it’s just too expensive/dangerous. Maybe someone will find a patent to “display text remotely” and take down Google or the whole Internet (at least the part that runs in the USA).

The lawsuits between Apple and Samsung should be a warning shot. These only exist to give one company a bigger market share in a saturated market. Better product doesn’t count nor how “inventive” it is. It’s just the logical, inevitable conclusion what happens when all players follow the rules that we made.

Or Oracle vs. Google. Oracle came in demanding several billion dollars and got nothing. But if they had a different judge, the outcome could have been completely different. Is that what we want?

This seems to damage companies like Swype (see “An Example” in his post). But does it really?

First of all, someone could copy their idea. But customers would only buy the copy when it was better for most of them. Do we really want to protect something that most people think worse?

Copying an idea usually leads to a new, very similar but still different idea. The “thief” adds his own wisdom to it. We call that process “learning”. Isn’t that something that we should support?

If Swype can’t patent their idea, they can still make a product and sell it. If they fail, some money will be lost. But if they succeed, no other company can sue them for billions of dollars for no other reason than to slow them down. Isn’t that better than the other way around?

We say that the Internet Year is only three months. New ideas spring up so quickly by now that the old, sluggish patent system can never keep up. Do we want to slow down progress (might be a good idea) *and* feed the trolls? How much is an idea worth protecting if it’s outdated in 9 months?

How much more money will we make/safe if software patents are outlawed and all this money goes back into R&D?


The Private and Social Costs of Patent Trolls

26. September, 2011

Another study by James E. Bessen: “The Private and Social Costs of Patent Trolls

Patent trolls did cost society over $500 billion in the past 20 years. That’s not the money they sued for – that’s the money shareholders lost because of diving quotes because of a lawsuit. It’s money that was converted to nothing. No one, not even the trolls, had any advantage from it.

The study also shows that patent trolls only sue big companies. This is an indication of a weakness in the current patent system (the one after the “huge” reform).

Patent Trolls vs Common Sense 1:0 Again

11. June, 2011

Microsoft failed in court to relax the rules under which existing IT patents can be challenged. A great loss for everyone, even those who like the status quo.

Remember: i4i (is that “eye for an eye”?) owns patent 5,787,449: “A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations.”

While the first sentence screams XML, it’s actually about a way to save additional data along with an XML document. Microsoft Word allows you to include any other file in the document, hence they violate the patent. Here is a good analysis.

This doesn’t mean anyone using XML is now prone to a lawsuit by i4i, but it’s still bad news. Why?

The parent was granted in 1998. In the very same year, the XML 1.0 standard was created (see here). This is just an example but patents are filed when the world starts to explore the very same field, obviously. We haven’t seen patents for combustion engines in 1603. And no patent office is going to accept patents for intergalactic FTL drives today.

Patents are filed to protect the investments of big companies. The pharmaceutical industry has to spend many million dollars to create a new medicine. Everything else has already been invents, so only the complex == expensive stuff is left. On this scale, it makes sense to generate billions in revenue since that’s about only one to ten thousand times what you invested. And you make that over many years.

IT is different. While the idea to store additional information along with a document might have been novel in 1998, it’s completely obvious today. The investment of i4i was probably on the scale of a few thousand dollars. Now, they made $290 million just by suing Microsoft.

My gut feeling is that they abuse the system. Pharmaceutical companies take great risks, i4i didn’t. i4i doesn’t sue everyone, they sue the big money. It’s perfectly legal. But is it right?

Here in Germany, we have the term of “Rechtsfrieden” which means “peace of law.” People believe and follow the law because it appears to be just. Violating the peace of law means that someone uses perfectly legal ways to harass someone. Think of a lawyer who got dumped by his girlfriend and now uses all the tiny transgressions we all do to turn her live into hell. She parks where she shouldn’t, he send a photo to the police. She drives a bit too fast, another fine. Talking with her mobile on the wheel. Telling people that she is a serial offender but no details, lest he could get into trouble. This behavior creates the impression on other people that the law can easily be used against them. The trust that the law needs to be efficient is undermined.

From my point of view, patent trolls violate the peace of law. They invest little and try to milk society. The damage is much bigger than the $290 million fine. M$ had to withdraw an entire production of Office products, they had to pay a fortune in lawyer fees, and now every software company using a similar technology is under even more stress than before: i4i just got the money to drive anyone out of business. Because today, almost every software company uses technology like that. It’s so obvious today that no one would even think that there might be a patent for it.

And that’s the fundamental problems around software patents: They don’t make sense on any level.

Other industries have to invest millions of dollars in equipment and thousands of people (in the field, lab workers, people building lab equipment, test subjects) and procedures (clinical or other tests, legal reviews, patent research) to develop new products. Actually producing those products is expensive: You need workers, factories, raw material. And then, you haven’t sold a single unit. So you need transportation, packaging, hygiene environments, storage, advertising, sales points, etc.

To bring a new medicine to market, you need one billion dollars today. That is a huge risk. While I don’t like patents, I can understand that you want all the protection you can get in this case.

Software patents are dirt cheap by comparison. Usually, it takes just one person to have the idea. You need equipment that costs a couple of thousand dollars. Even 1998, computers usually cost less than $10’000. Developing the idea to a real patent is in the same range. You don’t need expensive equipment for that, just determination and a good patent lawyer.

Basically, there is no risk in developing a software patent. If the patent is found void, you also don’t lose much. It doesn’t mean your investment is lost. It doesn’t mean your multi-million dollar factory is ripe for an unexpected amortization. It doesn’t bankrupt you.

On the other hand, a software patent is a great tool to harm society, 100% legal. That $290 million isn’t coming out of the pockets of Microsoft, it’s ultimately coming out of the pockets of their customers. The fine doesn’t benefit society, it goes to the owners of i4i. And rich people don’t share.

The judges in the M$ vs. i4i case argued that the government should set the rules. Which sounds good. But apparently, the members of parliament also don’t understand that we have two completely different sets of problems. When biochemical companies argue pro patents, they ignore the fact that one size only fits all when everyone is the same size.

Conclusion: In my opinion, i4i legally “swiped” $290 million from society. Which is a perfect argument to treat software patents completely different from normal patents.

Why Software Patents Are Illegal

28. April, 2011

Patents on machines are legal, patents on speech are not. You can’t patent Obama’s latest public appearance or a mathematical proof. Those things are covered by copyright laws (and followers of this blog know that those are flawed as well).

So why are software patents illegal? They are recipes which tell the computer what to do. You can’t patent recipes. Therefore, it should be impossible to file a patent on software.

The long version is here: 1 + 1 (pat. pending) — Mathematics, Software and Free Speech (Groklaw). The article explains why lawyers often get confused by computer terms, how this is bad and how to stop them.

At last: Filing patents is been patented!

11. January, 2011

Just before the end of last year, a gaping hole has been closed in the struggle to turn the world in a lawyer’s playground: IBM has filed a patent that patents filing patents.

Whenever you apply for a new patent, you’ll have to pay royalties to IBM! It’s like the invention of the self-printing money! Well done! 🙂


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