19th Century Patents -- 200 Years Later

November 9, 2009 2:30 PM

The Supreme Court is hearing arguments on the appeal of two "math geeks" who were denied a patent for a business method they developed for utility companies. This is one of the most watched cases of the Supreme Court term, drawing some 67 briefs. Although the patent office has recognized that business methods can be patented, it is not clear whether patents, developed to protect innovations like machines and transformative processes, are available for 21st century inventions such as software.
posted by bearwife (98 comments total)

And yet, somehow Amazon still holds the patent on 1-Click, which has seemed like a farce of a patent to me since it was granted.
posted by hippybear at 2:41 PM on November 9, 2009 [4 favorites]

Here is some information in helping to determine subject matter eligibility for patent (follow the link to the PDF flowchart).

Some software patents tie the invention to a particular physical manifestation, such as code on a storage medium, or operation on computer hardware. Another way to get patentability is to perform a chemical or physical transformation. Things that are clearly unpatentable include natural phenomenon and bare formulae, like e=mc².
posted by exogenous at 2:50 PM on November 9, 2009

anyone can hold a patent for as long as they like no matter how ridiculous it is. In order to lose it, it has to be challenged in court, and I don't know if Amazon has ever tried that.

Amazon filed a patent infringement lawsuit in October 1999 in response to Barnes & Noble offering a 1-Click ordering option called "Express Lane." After reviewing the evidence, a judge issued a preliminary injunction ordering Barnes & Noble to stop offering Express Lane until the case was settled.[9] Barnes & Noble had developed a way to design around the patent by requiring shoppers to make a second click to confirm their purchase.[10][11] The lawsuit was settled in 2002. The terms of the settlement, including whether or not Barnes & Noble took a license to the patent or paid any money to Amazon, were not disclosed.

And actually I just noticed that amazon seems to have removed the '1-click' buttons in the past few days. At least for me. Now they have this "pay phrase" thing, which supposedly works on other retailers and seems pretty stupid.
posted by delmoi at 2:51 PM on November 9, 2009

This is the point where I restate my desire to one day patent the process of extending and curving the lower stem of the i letter in order to denote an affricate palatalization.
posted by qvantamon at 2:55 PM on November 9, 2009 [6 favorites]

In order to lose it, it has to be challenged in court

There's also reexamination in the patent office. Looks like the reexam of the one-click patent is still ongoing (serial no. 90/007,946 here).
posted by exogenous at 2:57 PM on November 9, 2009

Wikipedia has a great synopsis of the case and the issues it presents for anyone wanting to delve into the details. The super condensed version, either include a machine or transform one thing into another or your method is not patentable. The Supremes will likely agree, as it seems fashionable these days to be rolling back patent protections, but they always put their own little stamp on things.
posted by caddis at 3:06 PM on November 9, 2009 [3 favorites]

It sounds like all these guys are doing is applying standard statistical models to utility companies and the weather. That's ridiculous.
posted by delmoi at 3:08 PM on November 9, 2009

Yeah, this shouldn't qualify for patent protection. Will companies not hedge if there's no patent? No. Patents should protect inventors from losing their ideas that are trivially duplicated once they're proven. It's not like these guys invented hedging - it's a specific type of hedge. I would have opened a consultancy, kept it a trade secret and saved the lawyers' fees.
posted by GuyZero at 3:25 PM on November 9, 2009

Patently-O is running a summary of the oral argument.
posted by jedicus at 3:25 PM on November 9, 2009

It sounds like all these guys are doing is applying standard statistical models to utility companies and the weather. That's ridiculous.

Is it ridiculous because it seems obvious to you or because it seems like unpatentable subject matter? This is a subject matter case. Questions of prior art and obviousness are separate and not at issue here.

Yeah, this shouldn't qualify for patent protection. Will companies not hedge if there's no patent? No.

This is correct as far as it goes but largely meaningless. A patent is not the right to do something but rather the right to exclude others from doing it. The proper policy question is whether the existence of this patent encourages the development of new, useful, nonobvious methods of hedging risk and the structuring of deals around the licensing of those methods.

I would have opened a consultancy, kept it a trade secret and saved the lawyers' fees.

And then the rest of the world may never have learned about this particular method of hedging, which to me suggests a net loss to the world.
posted by jedicus at 3:33 PM on November 9, 2009 [4 favorites]

A patent is not the right to do something but rather the right to exclude others from doing it. The proper policy question is whether the existence of this patent encourages the development of new, useful, nonobvious methods of hedging risk and the structuring of deals around the licensing of those methods.

I do understand that and that was sort of my point - I do not think that patent protection would make a significant difference to the development of hedging techniques. There is no capital cost for hedging - you don't have to build a hedge factory or something. You just do it (yes, there may be capital-like costs associated with the hedge contracts, but that's not quite the same). Either this technique works or it doesn't - no one needs 17 years (or whatever - I'm not sure) of protection of an investment to recoup their research costs on this technique. They're asking for a de facto monopoly on a specific set of calculations which isn't some that (IMO) requires patent protection.

And then the rest of the world may never have learned about this particular method of hedging, which to me suggests a net loss to the world.

If the technique has a net economic benefit then it should be trivial for the "inventors" to convince people to adopt the technique and to pay them to implement it.

Essentially, my argument is that there is no hypothetical investment that needs protection here if that's the element of patent policy at hand. I'm sure we can all agree that the reductio ad absurdum of allowing any series of calculations to be patented would not be good for society, so the issue is where to draw the line (as always) and IMO, this one ain't there.
posted by GuyZero at 3:45 PM on November 9, 2009 [2 favorites]

Patents historically were intended to allow an inventor to profit from the invention for most of his or her working career, leading to the 17-year term. But the patented creation had to be fully described in the patent application, so that when it expired, the knowledge entered the public domain, free for all to use. This gave a powerful incentive to create new things, but it also meant that society as a whole would eventually get all the benefits.

This works really well in mechanical processes, actual inventions, but it doesn't work at all well with simple things like 'business methods'. That's just crazy; humans have been organizing themselves in different ways for thousands of years, and saying that you're the only person that can organize your working group in a particular way is nuts. That's like Ford patenting the idea itself of the assembly line, rather than a specific way to build cars quickly.

For that reason, it was very hard (though not impossible) to patent a method of doing business, but that changed in the late 80s and 90s, for reasons I'm a bit unclear on. Wikipedia says it's because the USPTO said it didn't have the expertise to handle this newfangled computer stuff, so they just shrugged and granted patents on just about anything that crossed their desks. And that transformed, gradually, into full-scale business method patents, because software is just a method of organizing data, and organizing data is another way of describing how people are organized. The USPTO later backed off on that idea, going back to the idea of physical devices doing physical things, but the people who had (and want) business method patents are fighting like crazy to get them back.

What we have today in the software world is a gigantic snarl of patents, where a few big companies hold enormous portfolios (IBM and Microsoft are two huge players), and it's essentially not possible to write a significant program without infringing on multiple different patents from multiple different large players.

The biggest problem is the disconnect between the 17-year lifespan of patents and the extremely short time between software generations. As it's turning out, software is a series of layers, of tools that abstract problems. When you start with bare metal, even writing programs itself is difficult, so some of the earliest tools were compilers to transform human-readable instructions into machine code. Layer after layer after layer has accreted, each layer abstracting more complex things, like time-sharing physical resources or drawing graphics or interacting with the user. Modern languages like Python will abstract away very, very complex ideas into easily-usable interfaces.

It is, essentially, the process of making tools to make more tools, and it's been going on a very long time. But many of the really good tools are under lock and key for seventeen years. And even stupidly obvious stuff, like the 1-click patent, or transforming existing non-patented or patent-expired ideas into computer form, is also locked away.

One solution is to eliminate software patents altogether, which at this point might be the best idea, and appears to be the direction the system is moving in. You have the problem of the basement programmer doing something brilliant and then losing his or her incredible idea to Microsoft or Apple or IBM. But, at the moment, that basement programmer can be held hostage by the rest of the vast array of already-issued patents anyway. If it's sufficiently brilliant and threatening, it's unlikely that he or she can make a product that avoids enough other patents to avoid being sued into oblivion. So, typically, he'll be forced to sell the patent to a venture capitalist, with lots of money, or to an IP firm of some kind, which are generally well-enough 'armed' to survive in the very hostile programming climate.

Another solution would be to reduce the duration of software patents to something more reasonable, like five years. But we still have all the existing 17-year patents, so normal progress couldn't fully resume until 2026 or so.

This is, I believe, a specific case of a bad patent application, and the USPTO was right to reject it. Given our current climate, Bilski and Warsaw should probably be able to patent a specific method of regularizing utility bill payments for customers, but they shouldn't be able to shut down the entire market for utility-bill regulation.

Recognizing a business need should not be patentable, only a specific solution for that need.
posted by Malor at 3:50 PM on November 9, 2009 [9 favorites]

17 years (or whatever - I'm not sure)

In the US, 20 years from the date of filing.

Essentially, my argument is that there is no hypothetical investment that needs protection here if that's the element of patent policy at hand.

The investment is in the mental effort required to develop and fine tune the models for hedging risk.

I'm sure we can all agree that the reductio ad absurdum of allowing any series of calculations to be patented would not be good for society, so the issue is where to draw the line (as always) and IMO, this one ain't there.

This is quite far from a series of calculations. The method requires at least three parties (a broker, a buyer, and a seller), a commodity (the example in the application is, I believe, coal), and of course money. I think those things very neatly separate the subject matter here from a series of calculations or abstract idea.
posted by jedicus at 3:56 PM on November 9, 2009

Software patents are the devil's handiwork. Nuke them from orbit.
posted by mullingitover at 4:00 PM on November 9, 2009 [4 favorites]

This is quite far from a series of calculations. The method requires at least three parties (a broker, a buyer, and a seller), a commodity (the example in the application is, I believe, coal), and of course money. I think those things very neatly separate the subject matter here from a series of calculations or abstract idea.

Three parties exchanging money for a commodity seems like it might have some prior art working against it then.
posted by GuyZero at 4:02 PM on November 9, 2009 [1 favorite]

This works really well in mechanical processes, actual inventions, but it doesn't work at all well with simple things like 'business methods'. That's just crazy; humans have been organizing themselves in different ways for thousands of years, and saying that you're the only person that can organize your working group in a particular way is nuts.

A patent on, say, a drug is the exclusive right to make, use, sell, offer to sell, or import the drug. Is this not equivalent to the exclusive right to organize a business around the making, using, selling, offering to sell, or importation of the drug?

But many of the really good tools are under lock and key for seventeen years.

Can you give some examples of these really good tools under lock and key? Are they not being sold by the patentee? Have open source developers and academics been sued or threatened by the patentee?

In fact, the vast, vast majority of the 'really good tools' in computer science were invented decades ago. What's more, computer science tells us that most of the fundamental operations (searching, sorting, arithmetic, etc) have either optimal solutions, near optimal solutions, or are essentially insoluble. Thus, most of the new work in computer science represents incremental improvement, not discoveries of essential new tools the patenting of which would cause the industry and academia to stagnate.

Recognizing a business need should not be patentable, only a specific solution for that need.

What you are proposing here is that patentees should be required to more fully and specifically describe their inventions and claim only that which has been specifically described. This is a strengthening of the Section 112 requirements and it's something I can get behind. It is a separate issue from patentable subject matter, however.
posted by jedicus at 4:04 PM on November 9, 2009

Three parties exchanging money for a commodity seems like it might have some prior art working against it then.

Again, that's a question of anticipation or obviousness, not patentable subject matter. Furthermore, the claims are directed towards the particular business arrangement that brings the parties together, not simply to the idea of parties exchanging money for a commodity.
posted by jedicus at 4:05 PM on November 9, 2009

Without opening myself up to legal action, let me just state that once upon a time I worked for a software company. Once upon a time this software company produced a FancyThing. They demoed this FancyThing for tens upon tens of people. One of these people knew a little bit more about patents, and seeing no patent for FancyThing patented it itself.

Many years later, the patent awarded, a faux company was created that cried Woe, woe is me, we can't make our FancyThing, this company took it from us.

They got a jury trial. The jury saw big software company, and poor little faux company.

Lots of lawyers.

Net result? Poor littlefaux company reaped milliions. I mean, millions upon millions, from the big software company. For their own product. Millions upon millions upon millions.

Yes, the patent is still under investigation by the USPO.

My mind still reels. Still not quite sure how that turns into a jury trial..
posted by cavalier at 4:07 PM on November 9, 2009 [4 favorites]

New business model? Utility companies? Math geeks?

I know these guys are probably just fine, but the idea of smart people gaming utilities distribution to make money just gets my Enron alarm bells going off.
posted by mccarty.tim at 5:20 PM on November 9, 2009

Can you give some examples of these really good tools under lock and key? Are they not being sold by the patentee? Have open source developers and academics been sued or threatened by the patentee?

Two software examples off the top of my head are mp3 (audio compression, held by Fraunhofer) and the algorithm used by GIF images (Lempel-Ziv, now out of patent if I remember right). An example of egregious silliness is the "XOR cursor" patent. Looks those up on the google.

One point about patents that most people don't seem to know is that independent discovery is not an exception, and neither is there one for research/experimentation. To me this is the harshest cut -- just because Joe had an idea before me I'm not allowed the fruits of my own labour.

Software is a 21st century invention?
posted by phliar at 6:27 PM on November 9, 2009 [1 favorite]

I'm sure the company I work for is violating dozens of software patents. Thankfully, we're also not making a profit and are coasting off of VC money, so there's no point in suing us.
posted by empath at 6:43 PM on November 9, 2009

I actually think MP3 is one of those things that patents were designed for. That company invested a lot of money in research and development to develop a new, non-obvious process and product that improved the world immensely, shared it with the world and charged reasonable fees to license it. Everyone profited hugely from it, and deservedly so.

That's how the system is SUPPOSED to work. It seems to be the exception, though.
posted by empath at 6:45 PM on November 9, 2009

Two software examples off the top of my head are mp3 (audio compression, held by Fraunhofer) and the algorithm used by GIF images (Lempel-Ziv, now out of patent if I remember right). An example of egregious silliness is the "XOR cursor" patent. Looks those up on the google.

Frauhnofer offers Reasonable and Non-Discriminatory licensing terms for the mp3 patents, and I believe only requires a license for an encoder, not a decoder. In any event, there is no shortage of open source mp3 encoders and decoders, which Fraunhofer has made no particular effort to prevent.

The GIF patent was never well enforced, and open source implementations abounded. Furthermore, partly as a result of the patent, the PNG format was created and has since surpassed GIF in both popularity and quality. In other words, one of the great features of the patent system--that it encourages others to design around the patent--worked as intended.

Similarly, the XOR cursor patent does not seem to have had any particular negative effects. All major GUI systems have efficient, effective cursors, for example.

In any event, none of these were fundamental technologies. If you want to argue that software patents have hurt software development or open source software, you're going to have provide real, concrete examples of harm, not potential or theoretical harm.
posted by jedicus at 6:47 PM on November 9, 2009

independent discovery is not an exception

In fairness to patents this would be a silly exemption as two guys both filed for a patent for the telephone nearly simultaneously and such an exemption would have rendered the patent worthless. Willful infringement of a patent typically results in triple the damages versus an unintentional patent violation.

And while that also makes sense on its own, the concept of "willful infringement" is sufficiently broad that many large high-tech companies have blanket prohibitions against discussing patents internally. Only the patent guys can actually acknowledge the existence of patents - engineers have to pretend that patents don't exist and proxy all patent-related research via others. One frustrating example of this is a feature people are constantly requesting in a product made by my employer. Because the reason may (or may not - I dunno) be patent related, no one can email an answer to people in general. The patent guys simply say "don't do X" in person to the smallest group of people possible and they don't explain why. Very frustrating and it does little to reduce the speculation or clearly explain why those features aren't there.
posted by GuyZero at 6:47 PM on November 9, 2009 [1 favorite]

Also -- the reason the PNG format exists is because of the GIF patent. (PNG originally stood for PNG's Not GIF).
posted by empath at 6:50 PM on November 9, 2009

Similarly, the XOR cursor patent does not seem to have had any particular negative effects. All major GUI systems have efficient, effective cursors, for example.

Successful enforcement of patents like the XOR is pretty hard. But they could have made life hell for Microsoft & Apple if they had their act together. The real win is when you convince a standards body to accept your patented technology as a standard (e.g. GSM or CDMA) and then there's an enforced licensing regime where everyone pays a predictable amount in an orderly fashion. Those kids of patents are "good".
posted by GuyZero at 6:50 PM on November 9, 2009

I actually think MP3 is one of those things that patents were designed for.

MP3 is a funny example although I certainly don't know everything about it. My impression is that no one was very interested in MP3 until people started using pirated encoders. The demand there led to real companies paying money to license MP3 for various devices, software, etc. But if a lot of people hadn't stolen the technology first, no one would have wanted to pay for it.
posted by GuyZero at 6:53 PM on November 9, 2009

And while that also makes sense on its own, the concept of "willful infringement" is sufficiently broad

Actually, the 2007 In re Seagate [pdf] case substantially narrowed the scope of willful infringement. It's not a non-issue, but many companies are considerably less paranoid about their engineers avoiding exposure to patents these days.
posted by jedicus at 6:57 PM on November 9, 2009

MP3 is a funny example although I certainly don't know everything about it. My impression is that no one was very interested in MP3 until people started using pirated encoders.

It was the combination of LAME + Winamp, I think.
posted by empath at 6:58 PM on November 9, 2009

Interesting! Thanks. I suppose exposure != discussion but perhaps we're more paranoid than average about patents.
posted by GuyZero at 6:58 PM on November 9, 2009

I don't think the people putting MP3s on FTP sites in '94 were using LAME. My impression is that it was straight-up pirated Frauenhofer code - l3enc or something. Winamp was certainly the explosion of popularity but it wasn't the first by far.
posted by GuyZero at 7:01 PM on November 9, 2009

Can you give some examples of these really good tools under lock and key? Are they not being sold by the patentee? Have open source developers and academics been sued or threatened by the patentee?

There are two issues here beyond the simple idea that patents keep good technology off the market. First, there often there is no clear patent holder. Liscensing from one supposed patent owner does not prevent the others from filing suits. For example, several different companies claim to have a patent on the mp3 algorithm.

Second, investigating whether a piece of software infringes on patents is an immensely expensive task and even after spending resources to do so there is no guarantee that you've discovered all possible patent claims. Under our patent system today, there is no way to be assured that you're not vulnerable to having the crap sued out of you the day you release your product or, more likely, five years later once you're established in the market and can pay a 100 million dollar settlement.

An example, NetApp filed suit against Sun claiming that ZFS infringed on 3 patents on copy-on-write filesystems. The patents are pretty transparently bad for several reasons. Copy-on-write is a very old idea (for a computer technology anyhow) with tons of prior art. The patents are vague and could really describe any filesystem ever implemented, copy-on-write or not. It took 2 years of litigation and who knows how many millions of dollars in legal fees to have the patents overturned. This isn't something a small company or individual could ever do.
posted by joegester at 7:07 PM on November 9, 2009 [3 favorites]

I don't think the people putting MP3s on FTP sites in '94 were using LAME

oh.. right.. well, l3enc was shareware, so they didn't have to pirate it.

MP3 wasn't on most people's radar when you had to download them from FTP, unless you were in college. Hell, most people weren't even on the internet in 1994, yet.

The real mp3 explosion wasn't until 1998 and 1999 when lame, winamp and napster were released.
posted by empath at 7:18 PM on November 9, 2009

An example, NetApp filed suit against Sun claiming that ZFS infringed on 3 patents on copy-on-write filesystems. The patents are pretty transparently bad for several reasons. Copy-on-write is a very old idea (for a computer technology anyhow) with tons of prior art. The patents are vague and could really describe any filesystem ever implemented, copy-on-write or not. It took 2 years of litigation and who knows how many millions of dollars in legal fees to have the patents overturned. This isn't something a small company or individual could ever do.

Poor patent quality in the software field partly stems from the USPTO's long reluctance to admit that software was patentable, hire a sufficient number of computer science-educated examiners, and stop treating computer scientists as second-class citizens when it comes to admission to the Patent Bar. The result is that the examiners do a poor job of weeding out overbroad claims and there aren't enough computer science-educated attorneys and agents to write good claims in the first place.

But the fact is that many patents in all fields are of low quality. Patents that come into reexamination or court are often invalidated. The answer is to eliminate the presumption of validity that makes patents difficult to overturn, not to pick and choose subject matter areas to exclude entirely.
posted by jedicus at 7:50 PM on November 9, 2009 [1 favorite]

I mostly agree with you on this. We could solve the problem by changing how patents are granted and reexamined. I think think in the case of software and mathematics (and probably some other fields) the benefits are outweighed by the burden of dealing with the patent system.

Patents are intended to foster innovation, not to create barriers to it. In an area of research that changes increasingly rapidly, where so many are making progress without ever issuing any patent licenses and which is already burdened with an ineffective and inefficient patent system, it doesn't make sense to try to fine tune a system that isn't adding enough value today to justify its existence.

I'm not really sure how they became such an ingrained part of our culture. This should be treated as a question of maximizing innovation but somehow we've latched on to the, rather odd, idea of granting limited monopolies to inventors.
posted by joegester at 8:16 PM on November 9, 2009

The official transcript of the oral argument has been posted. Patently-O has pulled some interesting quotes.
posted by jedicus at 8:30 PM on November 9, 2009

Wow, the court really seems to get it. They seem like they're thinking of striking down software patents, too, which doesn't even appear to be part of this case.
posted by empath at 10:27 PM on November 9, 2009

Yeah, the software patents discussion is great reading.

Five comments ago ("there aren't enough computer science-educated attorneys and agents to write good claims in the first place") I was convinced I could make a killing as a patent lawyer. After looking over Patently-O, it looks like there might be zero market for patent lawyers in five years.

CHIEF JUSTICE ROBERTS: "Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not --simply the method isn't patentable because it doesn't involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That's like saying if you use a typewriter to type out the -- the process then it is patentable. . . . that takes away everything that you spent 53 pages establishing. . . . [I]f you look at your footnote, that involves the most tangential and insignificant use of a machine. And yet you say that might be enough to take something from patentability to not patentable."

Great argument; Anything you do with the computer you could do on paper (given a sufficiently incalculable amount of time and paper). Software is just a process that a computer follows, so rimply running the software on a computer isn't enough to make it patentable.

I wonder if this treatment will be extended to gene-sequencers and patents on DNA...
posted by kaibutsu at 11:46 PM on November 9, 2009 [2 favorites]

JUSTICE BREYER: You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. ...

That would certainly be unique and non-obvious. ;)
posted by caddis at 4:06 AM on November 10, 2009

JUSTICE SOTOMAYOR: But a patent limits the free flow of information. It requires licensing fees and other steps, legal steps. So you can't argue that your definition is improving the free flow of information.

Hey, she gets it. At least she's aware of the fact that patents are not entirely positive for the free flow of information. Awesome.
posted by delmoi at 4:25 AM on November 10, 2009

I wonder if this treatment will be extended to gene-sequencers and patents on DNA...

I don't know if that makes sense. After all DNA is a physical thing. The people patenting DNA and proteins aren't worried about people simulating them on computers. They want to control the use in the real world. I'm not a biologist, though. So I don't really know how much patents come into play in research.

The problem for me is the idea that you can patent something you discover that's already in nature. The flip side of that, though is that if it costs $X million dollars to actually do the research, allowing a patent on what you discover can make sense if it's a way to reward people for making that investment and doing that work.
posted by delmoi at 4:29 AM on November 10, 2009

JUSTICE BREYER: But then all we do is every example that I just gave, that I thought were examples that certainly would not be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it's a machine.

MR. STEWART: ... we recognize that there are difficult problems out there in terms of patentability of software innovations and medical diagnostics.

JUSTICE KENNEDY: You thought we -- you thought we would mess it up.

MR. STEWART: We didn't think the Court would mess it up.

Good stuff. There's more to the quote then that, if you read the patentlyo.com link.
posted by delmoi at 4:40 AM on November 10, 2009

If this puts the patent trolls at Intellectual Ventures out of business I will dance a happy dance of joy.
posted by PenDevil at 4:45 AM on November 10, 2009

kaibutsu Software is just a process that a computer follows,

Yes, but this is true of everything.

Presume that something, whether it is a business process, a picture, a book, an emotion, even the positional state of a lawn of grass, can be fully described. By that I mean, all necessary and sufficient information to recreate that something, in a form such that it can be experienced in the same manner and used for (at least) the same purpose as the original. For a book, for example, the minimum requirement is the ASCII text, arguably even a subset if you don't mind READING CAPITALS WITH SPELLED PUNCTUATION STOP I'm sure it could be devolved further and remain comprehensible if not exactly pleasant reading. Or you can have a superset of it with, say, PDF-style layout and font information. Or a greater superset, with an image of the cover ... or even images of the wear pattern of each page, and the fingerprints thereon.

For some purpose, to some extent, a description of any meaningful thing can be produced. That description is isomorphic to a lengthy number. That lengthy number is describable and derivable by some formula; a sequence, highly likely to be almost as lengthy as the number itself (while dramatically shorter sequences are possible, finding them is a problem that makes prime factorization look simple).

All things are numbers. Even you and I.
posted by aeschenkarnos at 5:15 AM on November 10, 2009 [1 favorite]

> I'm not really sure how [patents] became such an ingrained part of our culture. This should be treated as a question of maximizing innovation but somehow we've latched on to the, rather odd, idea of granting limited monopolies to inventors.

That one's easy - patents are the 'VIP passes' of the great American dream of success. The legend is that if anyone comes up with something original and novel (that also happens to be useful), and they get a patent on it, then they can sit back and simply licence or sell the rights to that patent, and they'll become hella rich just from that.

The reality is that it's a long miserable process to get a patent, often requiring more money, man-hours and time than the original invention. Don Lancaster, one of the clever inventor types who you'd expect would be pro-patents, has provided a classic summary of why patents are not a good idea for the small entrepreneur [pdf].

More on-topic, as others have pointed out, software is such a young and fast-moving field that allowing long patents on software would be a huge block to innovation, as patent-holders wage war against any refinements or alternatives to their patented IP. The open-source movement has clearly shown that open, collaborative, patent-free development encourages innovation while still providing economic opportunity (except maybe for lawyers, boo-hoo)

aeschenkarnos > All things are numbers. Even you and I.
posted by Artful Codger at 6:12 AM on November 10, 2009 [1 favorite]

sorry, meant to drop that last line (even though it's a great concept)
posted by Artful Codger at 6:13 AM on November 10, 2009

software is such a young and fast-moving field that allowing long patents on software would be a huge block to innovation, as patent-holders wage war against any refinements or alternatives to their patented IP.

Except that software patents have been available for a couple of decades, a couple of decades that saw the rapid proliferation of software into every industry. Remember that it was only because of software patents that Google was able to compete against Microsoft. Google is built on software patents: patents on indexing, patents on search, patents on its advertising system, patents on its distributed computing infrastructure. Without those patents, Microsoft would no doubt have copied PageRank and other Google technologies.

Similarly, software patents have been absolutely key to Apple's revitalization. Without software patents, many of the innovations embodied in the iPod, iPhone, and OS X would easily have been duplicated by Microsoft in Windows Mobile and the Zune.

as patent-holders wage war against any refinements or alternatives to their patented IP

Actually, if I have a patent on something, it is entirely possible for you to get a patent on a new, useful, and non-obvious improvement on it. And of course a patent does not thing to prevent the use of an alternative. In fact, spurring the development of alternatives is one of the goals of the patent system.

But a patent limits the free flow of information. It requires licensing fees and other steps, legal steps.

This is a somewhat silly argument from Sotomayor. The primary alternative to a patent is a trade secret. If she thinks the licensing and other legal steps involved in a patent deal are complex, she should consider the convoluted mess that is negotiating around a trade secret. For starters, patent negotiations don't require non-disclosure agreements before they can even begin.

As far as the free flow of information goes: patents encourage that by giving innovators an incentive to disclose their inventions to the public. The major alternative, trade secret protection, does the exact opposite: it gives the innovator every incentive to keep the invention hidden for as long as possible and from as many people as possible.
posted by jedicus at 6:41 AM on November 10, 2009 [2 favorites]

Jedicus: as a professional working in the computer field with two patents to my name, I can say that pretty well every software patent out there is offensive to most practitioners (though I agree that the mp3 patent conceivably has some value).

First, in the software world, the alternative to a patent is NOT a trade secret - it's copyright! Software is very easy to conceive of, very hard to write.

In computer science, nearly all the ideas patented are "obvious to any skilled practitioner". You aren't going to tell me that things like "One Click" are somehow a new insight into the world that deserves protection.

Let's look at the Blackberry/Research In Motion case. There the hard work of hundreds of engineers working over years is literally taken away from them and given to another party who has contributed nothing, nothing at all to the industry, has written no programs nor done any research, and has simply scribbled down some unimplemented designs and paid a lawyer to patent them.

How does this help the world? How is this fair?

Software patents impede progress. They allow patent trolls to steal the hard work of others while contributing precisely zero of their own.
posted by lupus_yonderboy at 6:58 AM on November 10, 2009 [4 favorites]

in the software world, the alternative to a patent is NOT a trade secret - it's copyright!

No, it's not. First, copyright only protects the specific implementation, by which I mean the literal source code or executable code. Second, copyright does not protect against independent implementation, even independent implementation inspired by the abstract concepts behind the original. Third, the copyrightable nature of object code means that, in practice, proprietary software is still secret. Having access to the executable version of a complex program does not reveal much to the public about how the software works, unlike a patent which (should) give a detailed description of the invention sufficient to allow one with ordinary skill in the art to reproduce it without undue experimentation. Also, if you have a problem with the 20 year patent term, how is the virtually infinite copyright term an improvement?

Patents, copyrights, and trade secrets all serve different purposes.

In computer science, nearly all the ideas patented are "obvious to any skilled practitioner".

Again, then the answer is giving the PTO the instructions and resources to attract high quality software patent examiners and to eliminate the presumption of validity. This attacks the problem from both sides: fewer bad patents and those that remain will be easier to invalidate.

You aren't going to tell me that things like "One Click" are somehow a new insight into the world that deserves protection.

The One Click patent is, I believe, in its second round of reexamination. If it is indeed obvious, then it seems odd that no one has yet been able to come up with a combination of prior art that makes it obvious. And there are several large, wealthy corporations that would like nothing more than to see that patent invalidated, so it's not like there isn't an incentive to find that prior art.

Let's look at the Blackberry/Research In Motion case.

First, many of those patents were not originally owned by the patent holding company, NTP. They were assigned to a company called Telefind, which was not a patent troll. The company went bankrupt, and NTP procured its IP. So the origin of the technology is a hard-working inventor working for a real company, not some nefarious patent troll out to make a quick buck with some 'unimplemented designs.'

Second, non-practicing entities abound in the physical world, so there's no reason to consider them automatically suspect in the patent world. For example, a car rental company is a non-practicing entity. It owns thousands of cars yet never drives them. What's more, it charges a hefty premium for the use of those cars. Sounds like a 'car troll!' But actually the rental car company provides a useful service to those who don't need to own a car or who need a car at their destination. Similarly, a university that patents an invention may not necessarily practice it but provides a useful service to those that would rather not create their own in-house solution.

Empirically, small, non-practicing entities (i.e. not large NPEs like universities) represent a very small part of patent litigation. And patent litigation is itself much smaller than most people think. Only about 3000 patent lawsuits are filed each year and of those only about 300 reach a decision on the merits (i.e. a motion for summary judgment or verdict, as opposed to a dismissal or settlement). What's more, those numbers have proven remarkably stable even as the number of patents has increased.

Software patents impede progress. They allow patent trolls to steal the hard work of others while contributing precisely zero of their own.

Again, if the concern is with the ease of getting a patent on unimplemented, pie-in-the-sky ideas, then the answer is to strengthen the requirements surrounding the patent specification, not to exclude whole areas of subject matter from patentability. If the concern is the ease of getting a patent on something that should have been found obvious, then the answer is to eliminate the presumption of validity.
posted by jedicus at 7:46 AM on November 10, 2009 [1 favorite]

Software patents impede progress. They allow patent trolls to steal the hard work of others while contributing precisely zero of their own.

What say you to how patents helped Google and Apple compete with Microsoft? One example of a successful troll does not make all software patents inherently bad. RIM was offered a license but instead chose to play craps. They lost. That case was always about money and RIM went all in rather than take the safe bet. That was a mistake. Anyway, after the eBay v. MercExchange decision it is much more difficult for a pure troll to get an injunction. RIM would still have lost, but the money would be less.
posted by caddis at 8:03 AM on November 10, 2009

lupus_yonderboy is a far better spokesperson for this issue. Still, I'm gonna have a whack at it.

The One Click patent is, I believe, in its second round of reexamination. If it is indeed obvious, then it seems odd that no one has yet been able to come up with a combination of prior art that makes it obvious. And there are several large, wealthy corporations that would like nothing more than to see that patent invalidated, so it's not like there isn't an incentive to find that prior art.

The One-Click issue has its prior art in real life: ever taken just one item up to the cash register? Ever seen an "express line" - 8 items or less? Ever used a self-serve checkout? Yet this patent has survived two rounds...

That's one of the big problems with software patents - this is a case of a patent being granted not for an "invention" but for a common-sense operation migrated to the internet or software. There's nothing special, novel or innovative about the code behind a one-click operation. (Yes I'm a web programmer). But our current patent regime supports and encourages patenting such simple operations, when what should have really been protected is the "One-Click" trademark.

...non-practicing entities abound in the physical world, so there's no reason to consider them automatically suspect in the patent world. For example, a car rental company is a non-practicing entity. It owns thousands of cars yet never drives them. What's more, it charges a hefty premium for the use of those cars.

Car rental is obviously a useful service. Patent trolls have no such utility.
posted by Artful Codger at 8:07 AM on November 10, 2009

But our current patent regime supports and encourages patenting such simple operations

That may have been the case in the past, but the for past few years the US Patent Office has been extremely hard assed about what it allows.

Patent examiners can now get in trouble for allowing cases if someone higher up thinks the allowance was a mistake, but there is virtually no ramification for a garbage rejection. The result has been a culture of making bullshit rejections of patent applications, with applicants being forced to appeal or abandon cases because of examiner unreasonableness. Hopefully the new leadership at the PTO will move towards fixing the sitatuation.
posted by exogenous at 8:29 AM on November 10, 2009

The One-Click issue has its prior art in real life: ever taken just one item up to the cash register? Ever seen an "express line" - 8 items or less? Ever used a self-serve checkout? Yet this patent has survived two rounds...

I don't understand the argument you're making. I've never been to a cash register, express line, or self-serve checkout that remembered who I was and my preferred method of payment and allowed me to pay for my item(s) without presenting that method of payment again.

A closer real-world analogy might be a private club where the staff knows all of the members. When a member wishes to, say, pay for a meal, he or she is simply presented with a bill to sign without having to present a form of payment. I have no personal experience with such a system, but I've seen it in movies, so I imagine something like it exists somewhere.

But even so, the invention is (in part) realizing that it is possible to implement such a system on a website. Now, maybe that seems obvious to you, but for whatever reason no one has yet been able to come up with prior art that, alone or in combination, describes the One Click system or (post-KSR v. Teleflex) something close enough that common sense and ordinary creativity would fill in the gaps.

Of course, the reexamination is ongoing, so it may be that in the end the patent goes down in flames. Amazon has already narrowed the scope of the claims in response to the first office action in the reexamination. (And I should take this opportunity to correct myself: it's the first reexamination but a second office action--or possibly an allowance--is pending).
posted by jedicus at 8:30 AM on November 10, 2009

One-click is the equivalent of having an account at a business so you can walk in, point at something, and say 'I'll take it'. We've managed to allow a patent on something that has prior art going back to the founding of civilization.

The inane software patents are a test of our society and what kind of government incompetence we're willing to tolerate. It turns out to be quite a bit.
posted by mullingitover at 9:12 AM on November 10, 2009

Presume that something, whether it is a business process, a picture, a book, an emotion, even the positional state of a lawn of grass, can be fully described. By that I mean, all necessary and sufficient information to recreate that something, in a form such that it can be experienced in the same manner and used for (at least) the same purpose as the original.

Ah, but we have no such technology to either make such a recording of a Real World Thing, nor the technology to recreate a Real World Thing from such information. Let's not confuse the finger with the moon, here: What we do have is a number of reliable methods for creating digital representations of certain kinds of information, especially language, sounds, and pictures (moving and stationary). But these are still representations, not the actual Things. The digital film is not the actor, and the cbr is not the comic book. Software takes these representations and then applies processes to them.

I think it's rather clear that a new device for creating certain kinds of digital representations (like, say, an ultraviolet digital camera) should be patentable. It's a machine, and certainly does things that people like me (I'll presume nothing about you, who can see the numbers that we are all made of!) couldn't do with a pencil and paper and all the time in the world.

Likewise for a new device that turns a digital representation into a physical thing in a new and novel way. For example, the electronic ink screen of the Kindle and its kin should certainly be patentable.

The issue is with patenting new uses of existing machines. I shouldn't be able to patent, say, running Linux on a Kindle...

I think this is of direct interest to gene research. Is a particular sequence of DNA a new invention, or is DNA something more like a hard drive, and a particular sequence like a computer program? We'll probably all agree that one shouldn't be able to patent the particular configuration of my hard drive; why should DNA patenting be any different?
posted by kaibutsu at 9:19 AM on November 10, 2009

One-click is the equivalent of having an account at a business so you can walk in, point at something, and say 'I'll take it'. We've managed to allow a patent on something that has prior art going back to the founding of civilization.

The patent claims doing all of this on a website using a shopping cart ecommerce model, and I believe the specification mentions the use of cookies. Not just any prior art will suffice. The key to invalidating the One Click patent is a collection of pieces of prior art that, alone or together, account for each and every element of the claimed invention or are close enough that common sense and ordinary creativity can fill in the gaps. That has not yet been demonstrated, and not for lack of trying by many interested parties. I suspect you'll find it harder than you might guess to locate the appropriate prior art.

But in any case, the answer to the one click patent is improved examination, tighter drafting, and an eliminated presumption of validity, not abolishing all software patents.

We'll probably all agree that one shouldn't be able to patent the particular configuration of my hard drive; why should DNA patenting be any different?

Well, strictly speaking no one patents DNA per se. What gets patented are purified, isolated copies of the sequence or a purified, isolated protein produced by the sequence.

What's more, for the most part gene patents are a non-issue, long-term. As a result of the human genome project and the ensuing gene patent land rush, much of the human genome has been patented for a while and thus will go out of patent in a decade or so. Future gene patents will primarily be for artificial genes or for gene therapies.

Furthermore, as we get better and better at determining what kinds of proteins we need to make and how to make a given protein, genetic sequences will be seen as obvious. In the future, if you want a protein that binds to a given receptor, it will be obvious to say "ah, then clearly you should use sequence XYZ, let me synthesize that for you." Right now it's a lot of non-trivial work to figure out what might be a good binding molecule and how to make it, hence the patentability.
posted by jedicus at 9:29 AM on November 10, 2009

Presume that something, whether it is a business process, a picture, a book, an emotion, even the positional state of a lawn of grass, can be fully described.

…
All things are numbers. Even you and I.

Uh, right, but totally irrelevant. You can patent "machines and transformations" even though they can be described entirely. Rather then a rule that says "everything which is an idea or number is not patentable" which you can then say "well everything can be described as an idea or number, therefore nothing is patentable". You simply say which things are machines or transformations, and allow patents on those things.

In other words, there is a subset of concepts which are patentable, and everything else is unpatentable, rather then a subset of things which are not patentable, which can arbitrarily be extended to include everything.

This is a somewhat silly argument from Sotomayor. The primary alternative to a patent is a trade secret.

Right, but a trade secret can also be reverse engineered. If something isn't actually non-obvious then trying to keep it a secret won't do any good, since someone else will just figure it out.

You're missing the even more obvious fact that the primary alternative to a patent is simply not patenting something, and letting other people use it. Obvious doing that will increase the number of people who can use it. Given the difficulty of keeping and using a trade secret, it seems obviously that more people would go with that rout, and information flow would be much freer. Plus, with a trade secret, you would never know about something, so you could never desire it.

I think one of the reasons that software patents are so obnoxious is that with software, implementation is free, except for you time. If you look at something like Microchips, well, it costs a fortune to fab a microchip. If you have a chip you want to build, you have to spend a ton of money on fabricating it, so you might as well pay off whoever owns the patents along with the cost of fabricating it.

On the other hand, the CPU industry has basically become a huge self-protection racket. If wanted to design my own x86 CPU, I couldn't. Intel, or AMD would sue me for patent infringement. Of course, Intel and AMD can rip off eachothers patents however they please, because they have an agreement that lets them do that. Otherwise neither one of them could make x86 chips since they both own parts of the core technology.

But like I said, if you can afford to fabricate chips, you can probably afford to license patents.

What say you to how patents helped Google and Apple compete with Microsoft?

Uh, can you be a little more specific?
posted by delmoi at 9:39 AM on November 10, 2009

jedicus: 'The key to invalidating the One Click patent is a collection of pieces of prior art that, alone or together, account for each and every element of the claimed invention or are close enough that common sense and ordinary creativity can fill in the gaps.'

Cookie: a scrap of paper.
Shopping cart: a shopping cart.

It's pure prior art, and not even from this millenium. Throwing a computer into the mix does not make it a new invention.
posted by mullingitover at 9:41 AM on November 10, 2009

...A closer real-world analogy might be a private club where the staff knows all of the members. When a member wishes to, say, pay for a meal, he or she is simply presented with a bill to sign without having to present a form of payment. I have no personal experience with such a system, but I've seen it in movies, so I imagine something like it exists somewhere.

yeah, that. Also, running a tab at a bar.

But even so, the invention is (in part) realizing that it is possible to implement such a system on a website.

By that logic, a century ago, making an appointment by phone would be patentable. Ordering pizza by phone would be patentable. And so on.

This is exactly the problem - allowing patents on relatively trivial, commonsense operations simply because you were the first to use them in a brand new medium.

I agree with jedicus that patent reform could address alot of the complaints we're bringing, and would have prevented alot of contentious patents from being granted in the first place. So... where is this reform?

I recall a programming seminar I attended in about 1997 which was partially about JavaScript (that horrid client-side language). JavaScript is publicly visible by anyone who can see the webpage. A few of the attendees of the conference were unhappy that Javascript can't be easily hidden or obscured. If it had been, some idiot would have patented the 3 lines of code necessary to make an image rollover...
posted by Artful Codger at 9:47 AM on November 10, 2009

Google is built on software patents: patents on indexing, patents on search, patents on its advertising system, patents on its distributed computing infrastructure. Without those patents, Microsoft would no doubt have copied PageRank and other Google technologies.

I'm pretty sure Google is built on trade secrets and a first-mover advantage. The published PageRank paper is essentially an interesting historical footnote at this point but it has little practical relevance to modern search engines.
posted by GuyZero at 9:51 AM on November 10, 2009

It's pure prior art

Not according to the law as it exists today. Of course one can always argue for reform, and indeed I wholeheartedly support eliminating the presumption of validity.

A few of the attendees of the conference were unhappy that Javascript can't be easily hidden or obscured. If it had been, some idiot would have patented the 3 lines of code necessary to make an image rollover...

The client-side visibility of Javascript has nothing to do with the patentability of inventions implemented in Javascript. Javascript is just another language and a browser is just another GUI framework.
posted by jedicus at 9:55 AM on November 10, 2009

jedicus: "Not according to the law as it exists today."

Agreed, and letting this happen is why we fail as a society. A smarter group of people would've been near the point of rioting in the streets over such a farce.
posted by mullingitover at 10:00 AM on November 10, 2009

The client-side visibility of Javascript has nothing to do with the patentability of inventions implemented in Javascript. Javascript is just another language and a browser is just another GUI framework.

I'm saying that because JavaScript code is visible, all the clever little things that people figured out were very quickly disseminated in the early days and adopted, greatly reducing the opportunity for someone to claim to be the first and snag a patent.
posted by Artful Codger at 10:02 AM on November 10, 2009

I'm pretty sure Google is built on trade secrets and a first-mover advantage.

Then why does Google spend millions of dollars every year amassing software patents? And don't say 'defensive patents.' If Google were willing to disclose the information yet didn't care about the patent protection, then it would just publish the inventions directly and save millions. If it wanted to insure the Patent Office knew about the invention then it could submit Statutory Invention Registrations and still save millions.

But suppose you're right, suppose Google is built on trade secrets. Then one of the most successful companies of the Internet era, which has built vital technology relied upon by hundreds of millions of people, will be able to keep that technology secret forever. How has that served the public good? Clearly we need to strengthen software patents even more to give companies like Google an incentive to disclose their trade secrets and advance public understanding of computer science.

The published PageRank paper is essentially an interesting historical footnote at this point but it has little practical relevance to modern search engines.

It may have little practical relevance now but it was absolutely key to Google's early success. Had Microsoft (or an established search engine like Yahoo or Altavista) been able to copy the PageRank algorithm back in 1998, things would have turned out much differently. The same is true for AdWords.
posted by jedicus at 10:04 AM on November 10, 2009

I'm saying that because JavaScript code is visible, all the clever little things that people figured out were very quickly disseminated in the early days and adopted, greatly reducing the opportunity for someone to claim to be the first and snag a patent.

Ah, I see your point. Yes, publish early, publish often is a good strategy for preventing patenting by a later inventor. This is one of the many reasons why open source software is not in much danger from software patents.
posted by jedicus at 10:23 AM on November 10, 2009

AdWords is certainly a completely different kettle of fish versus core search. MSFT's weakness in search is due to a long period of under-investment in the area and not any fundamental IP blockades (at least, to my knowledge). And as for AdWords it was more a case of Google having to defend itself against people trying to sue Google in the early days as opposed to the other way around. IIRC it was Overture suing Google.

Search is a bad example because it's cutting-edge technology and most of what Google was doing 5 years ago has already been thrown out, re-written and obsolesced.

Google ...will be able to keep that technology secret forever.

Nope. The expectation is that something better will have been invented before the knowledge can diffuse out of the company. As it stands, lots of elements of Google's former trade secrets have begun to diffuse out but there are a lot of elements to success and IP protection is just one of them. I realize that patents are the subject at hand here, but there are many more reasons that companies succeed or fail that go far beyond IP protection, whether it's patents, copyright or trade secrets.

But back to IP diffusing out of Google - projects like Hadoop are built on techniques for distributed processing pioneered at Google. There are a LOT of Facebook employees who are ex-Googlers and much of their infrastructure is built be people who worked on Google's infrastructure. But the basic idea is that Google has to constantly work to be ahead of the curve.

And don't say 'defensive patents.'

oh, come on. Companies amass patent portfolios for this purpose all the time. Are you actually saying that defensive patents don't exist?

The other reason that companies do this is a HR exercise. Having engineers patent stuff is considered a positive thing for an engineer's career - if Google was not supporting patent application by its employees it would be at a competitive disadvantage in recruiting engineers whether it wants to use the patents or not.

But yes, some of the patents are serious business and serve to keep Google form getting sued or to force cross-licensing deals for technologies like AdWords. Obviosuly many of these deals are not public so I have no clue exactly what patent licensing deals have been worked out.

At any rate, Intel is a much better example of what I think you're trying to say versus Google. There is no reason that there aren't foundries out there pumping out 5-year old Pentium designs for $5 a chip aside from patents. Intel's monopoly is held very firmly in place almost entirely by patents. Google's position is not.
posted by GuyZero at 10:31 AM on November 10, 2009

Let's look at the Blackberry/Research In Motion case.

First, many of those patents were not originally owned by the patent holding company, NTP. They were assigned to a company called Telefind, which was not a patent troll. The company went bankrupt, and NTP procured its IP. So the origin of the technology is a hard-working inventor working for a real company, not some nefarious patent troll out to make a quick buck with some 'unimplemented designs.'

Again IIRC, yes there was a real inventor somewhere behind the NTP patent portfolio but he hadn't actually built anything either. He just though mobile email was a great idea and patented it. His intention was to build something so he didn't start as a patent troll but it was definitely a case of a patent being granted for something that no one had ever actually built. There wasn't even a design for a device or service.

This isn't to say that every patent should require a prototype but I guess it would be nice if patents required more than an idea and less than a functional prototype.
posted by GuyZero at 10:34 AM on November 10, 2009

I guess it would be nice if patents required more than an idea and less than a functional prototype.

And there we are in agreement. I would like to see the specification requirements strengthened and claims hemmed in to more accurately reflect what the inventor has actually invented. Too often, claiming starts with the actual invention and then broadens out to 'well, I guess this might also work, too, maybe.'
posted by jedicus at 11:05 AM on November 10, 2009

In the spirit of brotherly-Metafilter love, your earlier point abotu a lack of sufficiently trained patent examiners certainly doesn't help. Raising the bar on specifications would require a lot more people and even worse, people who know what they're doing. Two things that patent office is too underfunded to recruit.
posted by GuyZero at 11:26 AM on November 10, 2009

Empirically, small, non-practicing entities (i.e. not large NPEs like universities) represent a very small part of patent litigation. And patent litigation is itself much smaller than most people think. Only about 3000 patent lawsuits are filed each year and of those only about 300 reach a decision on the merits (i.e. a motion for summary judgment or verdict, as opposed to a dismissal or settlement). What's more, those numbers have proven remarkably stable even as the number of patents has increased.

What explains the disconnect between reporting on the issue of patent trolls and the numbers you give here? BTW, can you give a citation for the numbers that I could use in a paper, or is that from something not available to the public/academia? Apologies if they're in an article you've already pointed out; I'm not spotting them.
posted by tarheelcoxn at 11:36 AM on November 10, 2009

What explains the disconnect between reporting on the issue of patent trolls and the numbers you give here

Because most patent lawsuits are too boring to be newsworthy except to the parties themselves and for some big ones, their investors. Getting an injunction against RIM, that's interesting to a lot more people than Acme company enjoining Amalgamated from selling xyz widgets, especially if the widget is not a well known consumer product. Who cares whether one printing press maker gets an injunction against a competitor printing press maker? Too much of the news is about sensationalism rather than context.
posted by caddis at 12:10 PM on November 10, 2009

BTW, can you give a citation for the numbers that I could use in a paper, or is that from something not available to the public/academia?

One good recent study was done by Colleen Chien at Santa Clara University School of Law. She found that, in high-tech patent cases from 2000-2008, only 17% of cases were brought by non-practicing entities. And of course only a subset of those are what might be called 'patent trolls' as opposed to, say, a university or other non-profit research organization that owns the patent (and thus retains the right to sue) but licenses it to others for development.

I have not seen any good numbers on the damages at issue in NPE cases versus other cases. My guess is that NPE cases generally have less money at stake because a) they are only entitled to a reasonable royalty and not lost profits and b) post-eBay they are much less likely to receive an injunction and so cannot use that threat to force a higher settlement.

It's often pointed out that NPEs are especially troublesome because they tend to sue every imaginable defendant. But even sorting by the number of defendants showed that the NPE share only rose to 28%, still very much a minority.

For the number of patent suits filed over time you can look at this graph. Note that it's not normalized for the number of patents issued. There were ~500 patent cases in 1985 and ~3700 in 2005, but there were 71,661 patents issued in 1985 versus 143,806 in 2005. So the proportion is .7% versus 2.6%. But of course remember that patents have a term of many years, so the proportion of patents litigated to patents in force is even more stable.
posted by jedicus at 12:34 PM on November 10, 2009 [1 favorite]

jedicus++

This thread is excellent. ♥ you, metafilter.
posted by tarheelcoxn at 12:54 PM on November 10, 2009

Naive question:

... why is the patent office underfunded? Put another way, shouldn't it be self-funded - with fees from patent applications, points on any patent licences or sales, and a small cut of any patent judgements?

I'm thinking that
- those who benefit from patents should be paying for the system
- there would be pressure to make sure that all accepted patents are viable, else they won't generate income
posted by Artful Codger at 12:57 PM on November 10, 2009

why is the patent office underfunded? Put another way, shouldn't it be self-funded - with fees from patent applications

It is self-funded by fees from applications, but it has only limited ability to set its own fees. Also, any excess funds go to general revenues rather than being left with the office. It's also funded by maintenance fees, which amount to some thousands of dollars over the life of the patent.

points on any patent licenses or sales

Well, it costs $40 or so to file a record of a sale with the Patent Office, so that's something.

a small cut of any patent judgments

It's not clear why a patentee should have to pay the Patent Office for the privilege of protecting its property right. If someone has to pay you for trespassing on your property you don't give a cut to the zoning board or whatever.

there would be pressure to make sure that all accepted patents are viable, else they won't generate income

It's not actually entirely clear that the Patent Office has statutory authority to set fees for the purpose of shaping applicant behavior rather than simply off-setting costs, but in principle I agree with you.
posted by jedicus at 2:05 PM on November 10, 2009

A closer real-world analogy might be a private club where the staff knows all of the members. When a member wishes to, say, pay for a meal, he or she is simply presented with a bill to sign without having to present a form of payment. I have no personal experience with such a system, but I've seen it in movies, so I imagine something like it exists somewhere.

But even so, the invention is (in part) realizing that it is possible to implement such a system on a website.

Can we call this the "on the internet" clause?

Step 1: take something mundane
Step 2: patent the method "on the internet"
Step 3: profit!

Imagine if Avis had patented the ability to rent cars in 1994...on the internet. Every other car rental company would have to license that innovation from Avis for their unique IP. Software patents are a nightmare for small developers, a threat for medium sized shops and an arms race for the big shops.
posted by ryoshu at 4:34 PM on November 10, 2009

Google is built on software patents: patents on indexing, patents on search, patents on its advertising system, patents on its distributed computing infrastructure. Without those patents, Microsoft would no doubt have copied PageRank and other Google technologies.

Lots of people have copied pagerank. Certainly technorati, which publishes pagerank related scores (authority) right on their page. Has google ever sued anyone over their patents?

Then why does Google spend millions of dollars every year amassing software patents? And don't say 'defensive patents.' If Google were willing to disclose the information yet didn't care about the patent protection, then it would just publish the inventions directly and save millions.

The point of defensive patent is that if someone sues you, then you can sue them right back and force them into a patent sharing agreement like Intel and AMD have.

Again, has Google ever sued anyone for violating their patents? If not, then they are clearly defensive patents.
posted by delmoi at 5:48 PM on November 10, 2009

Lots of people have copied pagerank. Certainly technorati, which publishes pagerank related scores (authority) right on their page. Has google ever sued anyone over their patents?

There's more to PageRank than just counting the number of pages linking to a given page. In its broadest form, the score of each linked page is based on the score of each linking page. It's likely that Technorati's authority rating does not infringe the PageRank patent.

Again, has Google ever sued anyone for violating their patents? If not, then they are clearly defensive patents.

That does not follow. If I have a patent that I fully intend to use offensively if anyone ever infringes, but no one ever infringes, and thus I never sue anyone, that does not make my patent defensive.
posted by jedicus at 5:58 PM on November 10, 2009

That does not follow. If I have a patent that I fully intend to use offensively if anyone ever infringes, but no one ever infringes, and thus I never sue anyone, that does not make my patent defensive.

What does that have to do with pagerank? You can download a python implementation here. I think if google was planning to sue someone over their pagerank implementation the first thing they would have done would be to google for "PageRank Implementation". There are clearly plenty of implementations out there, some of which you can download.

Just to summarize: You asked why Google was getting patents, and then said "Don't say defensive patents" without showing any positive evidence that the patents were not defensive. When it was pointed out that they hadn't sued anyone over violating them (which is evidence they are defensive) you posited an absurd hypothetical which doesn't apply at all to Google's PageRank algorithm.
posted by delmoi at 7:49 AM on November 11, 2009

What does that have to do with pagerank? You can download a python implementation here. I think if google was planning to sue someone over their pagerank implementation the first thing they would have done would be to google for "PageRank Implementation". There are clearly plenty of implementations out there, some of which you can download.

But that implementation is hardly an economic threat to Google. The PR loss and legal costs from suing a non-commercial toy implementation like the one you linked would far outweigh the essentially zero economic harm from letting the implementation exist. Patent holders ignore low-value infringers all the time. So allow me to rephrase:

'That does not follow. If I have a patent that I fully intend to use offensively if anyone ever infringes, but no competitors ever infringe, and thus I never sue any competitors, that does not make my patent defensive.'
posted by jedicus at 10:25 AM on November 11, 2009

jedicus: WTF point are you even trying to make here? If you knew anything about information retrieval you would know that pagerank is a widely implemented algorithm used over and over again by everyone writing search engines. Bing certainly uses something similar enough to infringe, and if they didn't their search engine wouldn't even work.

You're just nitpicking statements in an inane way to try to save your point, which was wrong to begin with. You claimed that Google was "Built on patents" and that bing and other companies would have copied their software without them. But the fact is, everyone has copied their software and Google never sued them. Because the patents are obvious defensive. If Microsoft tried to sue Google, Google could sue them for infringing one of their patents, which is the point of defensive patents.

Let's summarize: First you claimed that Google is "built on patents" which is wrong. Google's business today is exactly the same as it would be if they didn't have any patents, with the exception that their patent portfolio serves a defensive purpose.

Second you claimed that Google's patents weren't defensive. You did this first by trying to redefine defensive patents. Next by claiming that obvious implementations like technorati weren't really implementations, then by claiming that free, open-source implementations 'didn't count'. You're basically nitpicking real evidence and arguing by false statements and ludicrous counter-factual hypotheticals. It's not very dignified.
posted by delmoi at 12:24 PM on November 11, 2009 [1 favorite]

demoi says it better than I've managed. And to repeat myself: substitute Intel or Cisco or Juniper for Google and you have a very solid case about businesses being built on patents. You chose a particularly bad example for some reason. Perhaps you were looking for an all-software example, I don't know.
posted by GuyZero at 12:35 PM on November 11, 2009

If you knew anything about information retrieval you would know that pagerank is a widely implemented algorithm used over and over again by everyone writing search engines

Well I have a bachelor's degree and a master's degree in computer science, though I didn't take any courses in search engine design or the like. I'd love to see your evidence that PageRank is used by 'everyone writing search engines.' Feel free to get technical.

Bing certainly uses something similar enough to infringe,

Your evidence being?

and if they didn't their search engine wouldn't even work.

Your evidence that there is no way to make a functional search engine that doesn't infringe the PageRank patent being?

You did this first by trying to redefine defensive patents

No, I pointed out that a patent doesn't become defensive only because it's never been used offensively. This is obvious. Something like 99% of patents never get litigated. Are they all defensive?

Next by claiming that obvious implementations like technorati weren't really implementations

Technorati's authority ranking is absolutely not the same as PageRank as it relies solely upon the number of incoming links, not the scores of the linking pages.

then by claiming that free, open-source implementations 'didn't count'

Of course toy implementations don't count. No one is going to build a search company on that Python implementation you linked to.

Another example of low-value infringement not counting: If I, sitting at home in may lab, make a few grams of some patented drug, which I don't ever give or sell to anyone to take as medicine but merely make as an experiment, is that really an infringement worth talking about? If the drug company doesn't sue me, have their drug patents suddenly become defensive patents?
posted by jedicus at 2:06 PM on November 11, 2009

You chose a particularly bad example for some reason. Perhaps you were looking for an all-software example, I don't know.

I chose Google because it's an all-software example, yes, but also because it shows that a) software patents help innovative startups compete against established players and b) software patents are not inherently harmful to open source software.
posted by jedicus at 2:23 PM on November 11, 2009

I really don't know anything about Google's patent portfolio, but I do know that the orthodoxy around Google's success has nothing to do with patents and that to my knowledge Google has been the defendant in patent lawsuits much more than they have been the plaintiff. I'd be fascinated if you can actually search cases and find any actual instances of Google suing anyone over a patent. A simple Google search reveal numerous news articles about suits brought against Google. I'm sure that most patent lawsuits don't get any journalistic coverage though, so it's hardly an unbiased sample.
posted by GuyZero at 2:29 PM on November 11, 2009

I'd be fascinated if you can actually search cases and find any actual instances of Google suing anyone over a patent.

So far as I know they've never been the plaintiff in a patent case. But as I've tried to explain above, a patent need not be involved in litigation to be an offensive patent.

For example, an obviously strong, innovative, well-drafted patent will generally never end up in litigation because any fool can see that it would be fruitless to try to get away with infringing it. It's usually only where there is some glimmer of hope that it could be invalidated or that the alleged infringer can skirt the patent's boundaries that a competitor will infringe. Well, alternatively the alleged infringer could simply be ignorant of the patent, but that's unlikely in this case, given Google's fame and the extent to which the PageRank algorithm has been discussed in academia and, for lack of a better phrase, the SEO community.
posted by jedicus at 2:41 PM on November 11, 2009

Hmmm
posted by exogenous at 4:47 PM on November 11, 2009

Hmmm

Eh, even the broadest claim of that patent is quite clearly describing the Windows Vista / 7 UAC feature. Unlike sudo, it's reactive and graphical. Unlike OS X's similar feature, it calls for various specific GUI features that the OS X feature lacks. Also, the patent indicates that the patent examiner considered various pieces of prior art, including sudo and various graphical front ends, including gksu and KDEsu.

Also, PJ once again shows her ignorance of patent law when she says this:

"And how do you like the final wording of the patent?:

Although the invention has been described in language specific to structural features and/or methodological steps, it is to be understood that the invention defined in the appended claims is not necessarily limited to the specific features or steps described. Rather, the specific features and steps are disclosed as preferred forms of implementing the claimed invention.

Please don't ever again write to me that software patents are good for us because they include full disclosure, so others can build on the "invention"."

That language is typical patent application boilerplate. It serves two functions: first, it satisfies the best mode requirement and second, it emphasizes that the patent is limited by the scope of the claims, not by an example in the specification. Patents don't provide full disclosure; they provide disclosure sufficient to allow a person with ordinary skill in the art to practice the invention described in the claims without undue experimentation.
posted by jedicus at 5:11 PM on November 11, 2009

Eh, even the broadest claim of that patent is quite clearly describing the Windows Vista / 7 UAC feature.

That has nothing to do with the patentability of the claims over prior art.

Also, PJ once again shows her ignorance of patent law when she says this:

"And how do you like the final wording of the patent?

Although the invention has been described in language specific to structural features and/or methodological steps, it is to be understood that the invention defined in the appended claims is not necessarily limited to the specific features or steps described. Rather, the specific features and steps are disclosed as preferred forms of implementing the claimed invention. "

That language is typical patent application boilerplate. It serves two functions: first, it satisfies the best mode requirement and second, it emphasizes that the patent is limited by the scope of the claims, not by an example in the specification.

How could this possibly satisfy the best mode requirement? If the best mode is not disclosed elsewhere, generic form language won't be of any help. Saying that the boilerplate satisfies the best mode requirement is like saying a form paragraph asserting "we have possession of the invention" meets the written description requirement. I also doubt that the boilerplate would be of much use in claim interpretation in litigation.

I agree that for the Groklaw article to focus on this portion of the specification shows a lack of familiarity with patent law, as well as an editorial objective). But then again, the internet is full of misunderstandings set forth by people who give the appearance they know what they're talking about.
posted by exogenous at 8:56 PM on November 11, 2009

'Eh, even the broadest claim of that patent is quite clearly describing the Windows Vista / 7 UAC feature.'

That has nothing to do with the patentability of the claims over prior art.

To the extent that the Windows Vista / 7 UAC feature contains elements that are not found in the prior art, it does. More to the point, as I explained, it has many features that sudo, its graphical front ends, and the UAC-like feature in OS X lack. Thus, yes, the fact that the claims are narrowly drawn to a particular feature not found in other operating systems has a significant bearing on its patentability.

How could this possibly satisfy the best mode requirement?

The best mode requirement simply requires the best mode to be set forth in the specification. This statement says, in part, 'the best mode of the invention is in fact found here in the examples given in the specification.'

I also doubt that the boilerplate would be of much use in claim interpretation in litigation.

In fact it serves as an explicit notice that terms in the claims that are the same as terms in the examples are not to be construed narrowly so as to mean only what's given in the examples. So for example if the claims mention a certain GUI element and the examples show a particular GUI element, this boilerplate language explains that the term as used in the claims is not limited to the particular example element.

Put another way, the patentee has the power to be his or her own lexicographer and define terms to have a particular meaning in the context of the patent. This boilerplate language is meant to explicitly state that just because a term was used in a particular way in an example it is not necessarily limited to that meaning in the claims.

You'll find similar language in most patents. Here's the similar bit from the PageRank patent:

"Although the following detailed description contains many specifics for the purposes of illustration, anyone of ordinary skill in the art will appreciate that many variations and alterations to the following details are within the scope of the invention. Accordingly, the following embodiments of the invention are set forth without any loss of generality to, and without imposing limitations upon, the claimed invention."
posted by jedicus at 10:18 PM on November 11, 2009

Your evidence being?

The fact that it works.

Your evidence that there is no way to make a functional search engine that doesn't infringe the PageRank patent being?

Well, what alternative is there for determining the quality of the page, Mr. C.S. Masters Degree. The basic idea behind Page Rank, rating the authority of a page based on the incoming links is necessary for a working search engine (I suppose these days you could get usage data from ISPs to see what sites people actually use, but that wouldn't be that helpful for determining authority within a certain topic). Thanks to spammers, of course, the basic Page Rank algorithm has to be tweaked heavily to work.

If you really have a masters in CS, then you should be able to figure out what other algorithms could possibly be used.

Technorati's authority ranking is absolutely not the same as PageRank as it relies solely upon the number of incoming links, not the scores of the linking pages.

What are you basing that on? The FAQ doesn't make that claim.

Look, you said Google was "Built" on patents, yet they don't license their patents and they don't prevent anyone from using their ideas. That's because what you said was wrong, and google is not "built on patents". They are built on good ideas, implementation first mover advantage, and a lot of luck.

If they hadn't patented anything, they would still be where they are today, except they might have hard trouble fighting off various patent infringement suits, which is the point of a defensive patent portfolio.
posted by delmoi at 11:19 PM on November 11, 2009

It would be instructive to look at what google actually has to say about Patents

Consider this: Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or “patent trolls.” Most of these cases seem to feature the same small set of contingent fee plaintiff's lawyers asserting patent claims against the same small set of companies. We've also noticed a more disturbing trend: in many of these cases, the patents being asserted against us are owned by — and in a surprising number of cases, are even “invented” by — patent lawyers themselves.
...

From Another Post:

Some have argued recently that reforms to the patent system would somehow make the U.S. less competitive in the world. That couldn't be further from the truth. Low-quality patents and escalating legal costs are currently hurting the ability of U.S. companies to compete globally, and that in turn hurts U.S. workers and consumers. Without a modernized patent system, U.S. companies are at a competitive disadvantage, spending resources on unnecessary litigation and unwarranted licensing instead of on innovation.

They are hardly calling for the elimination of software patents, rather they are simply requesting some tweaks. But they are obviously not supportive of the patent trolls that jedicus so valiantly defends.
posted by delmoi at 12:18 AM on November 12, 2009

The best mode requirement simply requires the best mode to be set forth in the specification. This statement says, in part, 'the best mode of the invention is in fact found here in the examples given in the specification.'

So you agree at that, at best, the boilerplate points to another part of the spec for the best mode. The boilerplate does not, at you said before "satisf[y] the best mode requirement."

[The boilerplate] serves as an explicit notice that terms in the claims that are the same as terms in the examples are not to be construed narrowly so as to mean only what's given in the examples. ...

This is well settled law. For example, see Phillips v. AWH. The en banc decision there did not even mention the similar boilerplate in the patent at issue. On my experience, such boilerplate will do little or nothing to make up for poor drafting elsewhere.

You'll find similar language in most patents.

I have in fact inserted similar language into numerous patent applications that I've written. All that means is that, for the minute it takes to paste the boilerplate into an application, the general consensus among patent practitioners is that it does more good that harm. It won't save you from shoddy drafting elsewhere and it sure as hell won't provide best mode.
posted by exogenous at 5:56 AM on November 12, 2009

The fact that it works.

You have not offered any evidence that PageRank is the only way to make a working search engine. You said, in essence 'Bing works because it uses PageRank and it uses PageRank because it works.'

Well, what alternative is there for determining the quality of the page, Mr. C.S. Masters Degree.

So your argument that PageRank is the only way to determine the quality of the page is that you don't know of an alternative?

If you really have a masters in CS, then you should be able to figure out what other algorithms could possibly be used.

I told you I hadn't taken courses on web search. Obviously there are the pre-Google search algorithms (e.g., whatever Altavista used), though they don't work very well. But, hey, Bing doesn't work so great either.

But they are obviously not supportive of the patent trolls that jedicus so valiantly defends.

What are you talking about? I'm in favor of the elimination of the presumption of invalidity, the strengthening of the written description and enablement requirements, and an increase in application fees. That, especially the first, would be a tremendous blow to patent trolls. The closest I came to defending patent trolls was saying that not all non-practicing entities are bad.
posted by jedicus at 6:38 AM on November 12, 2009

So you agree at that, at best, the boilerplate points to another part of the spec for the best mode. The boilerplate does not, at you said before "satisf[y] the best mode requirement."

Well, yes, in the sense that the claim that the preferred embodiment is found in the examples needs to be true, but it sort of goes without saying that you shouldn't lie in a patent application. So, assuming the statement is truthful, a necessary consequence is that the best mode requirement has been satisfied. But you're right, what I said before was neither clear nor accurate.
posted by jedicus at 7:02 AM on November 12, 2009

You have not offered any evidence that PageRank is the only way to make a working search engine. You said, in essence 'Bing works because it uses PageRank and it uses PageRank because it works.'

And you haven't offered any evidence that there are any other algorithms that could work as effectively without working a similar way to page rank being in the mix, because there is none. You say yourself you don't know anything about search engine design, why would I bother trying to disprove random hypotheticals from an illiterate?

You want evidence that there's no better algorithm? The fact that you can't find one (and don't tell me you haven't been looking) is pretty solid evidence to me.

Look, you still haven't even backed up your original assertion: That Google was "built on patents". As I've said, that's wrong. When I explained why that was wrong, you made up a bunch of imaginary scenarios and asked people disprove them. Why bother? You can't back up your central point, so you're doing what dios always: go off on wild tangents and try to distract people from the fact your original point was wrong.

Obviously there are the pre-Google search algorithms (e.g., whatever Altavista used), though they don't work very well. But, hey, Bing doesn't work so great either.

Bing works fine. Maybe worse then Google on some results, and better on others. Hardly anything like the mess of pre-pagerank algorithms.

Anyway, you're ridiculous: You imagine random points to back up your opinions (like Google being built on patents) then when people point out why you're wrong, you imagine more random stuff (Well, maybe there's another basic algorithm besides page rank style systems! Maybe Technorati doesn't authority system is different from google's! Maybe there are no other implementations of pagerank out there! maybe Bing doesn't use pagerank!) they're often wrong, as has been pointed out in over and over again.

I told you I hadn't taken courses on web search.

Well why don't you read a book? Why would I want to have a debate with someone who argues about things they don't understand at all? Why would I want to have a debate someone who is consistently makes unsupportable and incorrect claims?
posted by delmoi at 3:06 PM on November 12, 2009

And you haven't offered any evidence that there are any other algorithms that could work as effectively without working a similar way to page rank being in the mix, because there is none.

Are genuinely saying that there is no possible way to create better search than page rank? Not there aren't any now, but that there couldn't be in the future?

Also, page rank is only one of several factors that determine display order of results.
posted by empath at 5:58 PM on November 12, 2009

empath: I don't think it's impossible that new methods could be used, but there aren't really any good substitutes. Interestingly I think the way spammers have tried to game the system has really put pressure on search algorithms. I said in another post that there were other factors as well, but the main point was that most search engines use page rank in some way, and that google wasn't running around trying to sue everyone :P
posted by delmoi at 9:45 PM on November 12, 2009