An Opinionated Rant About the State of the US patent System

Whether or not you are a software developer, smart phone manufacturer, or purveyor of touch-enabled devices (just to name a few), you have no doubt heard the back and forth within the technology sector about patent infringement. Further, you are most likely aware of the “sweeping reforms”, otherwise known as the America Invents Act, passed into law by the US government in September. Chief among the “reforms” of the patent system in the US is a game-changing shift from a “first-to-invent” policy to one based on “first-to-file” when it comes to establishing ownership of an invention (which includes intellectual property, such as software and ideas).

What’s a patent, and why do I care?

From the American Heritage Dictionary:

The exclusive right granted by a government to an inventor to manufacture, use, or sell an invention for a certain number of years; an invention or process protected by this right. an official document conferring such a right.

In the simplest sense, a patent protects the right of an inventor to realize the fruits of his or her efforts, while also providing an incentive for investment in innovation. In the United States, the concept of the patent is established in Article I Section 8 of the US Constitution, empowering the Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Note the actual intent of this statement. The purpose of the patent system is the promotion of progress/innovation. The protections afforded inventors are the means by which this progress is achieved.

My first bitch: The game is rigged

Under prevailing US patent law, the patent holder can claim infringement at any time during the term of the patent. Further, it is the obligation of the “other inventor” to ascertain that an idea, invention, or intellectual property does not infringe upon the patent of another party. While patents are made public once granted by the US patent office, the sheer number of patents to be searched is staggering. Moreover, patent searches (and the additional legal legwork required to determine the risk of a new invention infringing upon an existing patent) is expensive and complex. Frightfully so.

Large corporations have armies of lawyers (who often have degrees in engineering in addition to their law degree) to handle the patent process. Even then, most of the time the best that can be hoped for is that this army of lawyer/engineers are able to determine that there is an “acceptable risk” that a product will not be infringing upon an existing patent.

Small companies, startups, and independent developers rarely have the resources to perform this type of exhaustive search.

Making matters worse, there were, in 2008, 6.6 patents pending for every patent issued. According to the US Patent and Trademark Office (USPTO), it takes about 22 months to obtain a patent. Given that 22 months is longer than the development cycle for many technology companies, it is possible for Company A to begin independently developing a software or hardware product before patent records related to another entity’s patent claim are even available. Company A might incur substantial costs for development of the soon-to-be-patented idea, followed by substantial investment in creating and developing a market. The newly-minter patent-holder is able to wait until Company A achieves significant market success with the new product before filing suit claiming patent infringement.

My Second Bitch: Who approves these things, anyway?

Even worse, recent patent litigation seems to be based upon hopelessly broad and/or common-sense ideas, duly committed to paper at the USPTO, under which nearly any software product might be accused of infringement. It would seem that what one needs in order to secure an enforceable patent at the USPTO is not an original, innovative “invention” but instead the financial and legal wherewithal to create reams of paperwork documenting generic ideas and making them sound original.

As an example, let’s examine US Patent # 5,251,294 “Accessing, assembling, and using bodies of information. This patent, filed in 1993 and now part of the Lodsys portfolio, opens with the following abstract:

“An interactive information environment for accessing, controlling, and using information. Using a computer, available sources of information are accessed, and components are extracted, labeled, and formed into discrete units called contexts. A user selects and rearranges context labels and their associated contents. Contexts are selected and combined into new information structures called alternates, which are combinable with contexts into preferred situations. The preferred situations in turn are combinable with the foregoing components into meta-situations. All components have labels; labels and their associated contents are interchangeably movable and copyable at the levels of these information structures, whether they are located locally or remotely, and the information structures are combinable . . .” blah blah blah.

Does this sound like any common data organization models YOU know? Depending upon who you are, you might claim that nearly any spreadsheet program, relational database (and/or its associated GUI), HFS file system, HTML-based web page, or other computer usage of graphical data representations violates this patent.

The recent furor around infringement claims by Lodsys related to “in-app purchasing” find their basis in a similarly nebulous and far-reaching patent, US Patent #7,222,078 “Methods and systems for gathering information from units of a commodity” . . .

This patent opens with THIS abstract:

In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity.

Wow. This could ALSO cover most software ever written.

In both cases, the “inventions” are the product of Mr. Dan Abelow, who seems to sit around creating drawings and narratives of hopelessly broad technology concepts and then patenting them. Lodsys, which is in reality a holding company for Mr. Abelow’s patents, seems to exists for the primary purpose of “enforcing” those patents once some company achieves profitability from a technology implementation which might be said to utilize them.

Under this patent system, it seems like one might make a lucrative career out of dreaming up documentation for common uses of existing (and more importantly, existing but not-yet-fully-realized) technology, and filing your “inventions” with the USPTO. Then, just sit around and wait for someone ELSE to make the investment in bringing your “idea” to fruition. The, SUE!

How do Lodsys, Mr. Abelow, and other patent “trolls” pull this off? Why would large companies enter into licensing agreements for such nebulous patents? Because it is less costly to do so than to litigate in court. Also because most of these large companies have their OWN portfolios of patents, mostly (but not always) held as a defensive measure against just this sort of litigation.

Unlike the Patent “troll” large companies hold their patent portfolios for a number of reasons:

To protect legitimate innovation and to recover the costs of R & D, product development, etc. related to brining an innovation to market

To hedge against litigation as mentioned previously.

To use against competitors in restraint of competition.

Of these three, it is this last which is the most troubling to me. Say what you want about the Big Evil Corporation (BEC). If BEC creates an innovative technology, the patent concept is properly used in protecting the investment in developing the product, and incentivizing such innovation. But when said BEC attempts to use broad and what I will call “shady” infringement accusations as a means of restraining competition, I feel we enter a different realm. This is the mark of a company which cannot compete on the merits of its product, and which seeks instead to either reap profit or avoid competing by forcing its competitor to license dubious patent rights instead.

Is THIS what the Patent System is for?

I am certain this is NOT what our founding fathers intended when they empowered the Congress to “Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

What do you think?

Some interesting resources on this topic: