Patent Nonsense

There’s been a bit of recent buzz about the patent system, specifically as it relates to software. The fight against software patents has been running hot for the better part of two decades, but it’s only recently been brought to the view of the general public this past year with the acceleration of patent lawsuits, patent-related corporate buyouts, and associated news coverage.

I would argue that the deepest problem with “software patents”, if such a category actually exists, has nothing to do with the patentability of software as such, but rather is a reflection of the fact that the quality of patents being issued in relation to software is inexplicably terrible. It is as if the patent office simply forgot how to say “no” when faced with a bad patent idea.

We’ll start with some examples. The examples are important because what they demonstrate something that is simply not allowed for patents, and yet is more common than otherwise.

Example: 1-Click

Let’s start with the venerable 1-click purchasing patent from Amazon. This is patent number 5960411 for those of you following along at home. For illustration, we’ll first describe a purchase scenario that is (as far as I know) not patented, and presumably not considered patentable.

  1. The user logs in
  2. The user clicks a “buy” button
  3. The user is asked to confirm his purchasing decision
  4. The user is told that the purchase was successful

Now, let’s examine the Amazon’s innovative invention on this front. Here’s their patented method:

  1. The user logs in
  2. The user clicks a “buy” button
  3. The user is told that the purchase was successful

In case it isn’t already depressingly clear, the only difference is the removal of step 3. Amazon actually patented not asking for purchase confirmation. Yes, that really is all there is to it — read the patent if you don’t believe me; all the other details simply deal with the mechanics of setting up a purchase transaction, which details are shared between all shopping cart systems, even those that existed long before Amazon started business. In other words, every step of the process is part of existing prior art. The only difference is the removal of the confirmation step — which is traditionally included as a courtesy rather than for any technical requirement. This is very much like patenting not saying “thank you” at the supermarket in the interest of saving time.

And lest you think that this patent simply “slipped through” the system, this patent has been re-examined twice by the patent office, and has been determined to be valid.

Example: Automatic Linking

This next patent is owned by Apple, and is a cornerstone of their suit against Android manufacturers. This is patent number 5946647. This patent covers automatically generating links in text based on the content. So, for example, if text looks like a phone number, then Apple has patented automatically highlighting the phone number and performing some related activity if you click on it. Again, let that sink in for a moment: Apple hasn’t patented a way of highlighting the text or even a mechanism for determining which text to highlight. They just patented doing it, however you might get the job done.

The patent goes into painstaking detail in describing the computer upon which the process will run, a description which encompasses every major computer made since 1960, with such banality as “…a computer having a memory storing actions, a system for causing the computer to perform an action on a structure identified in computer data….” etc. The whole patent is, in fact, this unremarkable. Like the Amazon patent, every element of every claim represents some common component that is already in public use. It describes components that already exist, performing actions that already are performed, using patterns that are already in use. This therefore raises the question: “Just what, exactly, did Apple invent here?”

The patent doesn’t cover any new device or process or method or mechanism or algorithm. Instead, it covers the use of existing technology for the purpose of applying patterns to data. There is no new insight and no new invention. The patent describes a general system of matching patterns to data — not (and this is critical) some specific system of matching pattern, but rather any system that is used for this purpose. It’s not an explanation of an invention: rather it’s a description of how some future invention might be used.

The primary problem with this patent is the same as with the others, though here it may be more obvious. Specifically, the patent effectively covers an entire idea — this patent covers the very concept of automatically making text clickable, rather than some specific new device for accomplishing that goal. This should make you cringe a bit, because patenting ideas is explicitly disallowed in our system. You simply cannot patent ideas. And yet, in this case, as in the Amazon case, that is effectively what has happened.

Intellectual Flag-Planting

The central problem with these recent poor-quality patents (of which software-related patents comprise the bulk) is the fact that they don’t describe any invention. This statement should be contradictory–or heretical at the very least–since patents, by definition, are supposed to describe an invention. In fact, nearly every patent uses the word “invention” to describe the application if its claims, as if naming it such would make it so.

Instead, these offending patents effectively cover any and every method that could be used to achieve a specific goal. Rather than patenting the mechanism, they effectively patent the purpose. Amazon 1-click doesn’t describe a specific way of processing purchases with a single click; instead it covers every mechanism of processing purchases with 1 click. Likewise, instead of covering a specific algorithm for doing context-driven text interaction, Apple’s patent covers the very concept of such interactions, encompassing every implementation by every vendor, no matter how they did it. In the face of these patents you cannot come up with an alternative mechanism for achieving the same goal, because no matter what your invention, it will still be patented. It’s not the mechanism that is patented — instead it’s the result.

Effectively, with these patents Apple, Amazon, and other similar companies are planting a flag in the territory of ideas and claiming the entire land for themselves rather than building upon it and claiming the structure. Without actually inventing anything, these companies lay claim to all inventions to come that solve a given problem. This would be like Thomas Edison patenting the very concept of a long-lasting lightbulb rather than patenting his specific design.

Following the previous analogy, and in the interest of clarity, I’ll call these non-invention patents “flag-planting” patents.

It’s worth pointing out that not all software-related patents are flag-planting. Some do, in fact, cover real inventions.

Example of an Invention-Specific Software Patent

As a contrast to the above, let me point out patent number 5946647. This patent covers RSA public-key cryptography. Notably, this patent covers the specific mechanism rather than the resulting effect. That is, the patent is specific enough to only cover the RSA algorithm itself, rather than covering public-key cryptography as a whole. At the time, no other public-key cryptography algorithms existed. But by using the background knowledge gleaned by examining this patented algorithm, researchers were able to create the ElGamal and DSA algorithms which use much of the same technology but could be used as a royalty-free replacement to RSA for certain purposes.

This is how it should work — Rivest, Shamir and Adleman came across asymmetric encryption, but instead of laying a patent claim on the entire landscape, they built something new and patented their creation. This allowed others to build right next door using similar materials, but different inventions. Since others were free to solve the same problem without infringing on the patent, they were driven to invent alternate solutions.

Effect on Innovation

An important distinction between flag-planting patents and invention-specific patents is their effect on innovation. Flag-planting patents do not directly reflect any innovation, and more importantly, they lay claim to all future innovation for a given use. For example, if I come up with a novel way of doing 1-click purchasing, my invention will belong to Amazon. If I come up with a new and innovative mechanism for using patterns to make otherwise plain text interactive, then my invention will immediately become the property of Apple, as they have a patent that covers the entire landscape.

Conversely, the RSA patent actually encouraged innovation and invention in order to come up with alternate unpatented ways of solving the same problems. Likewize, the LZW patent (not mentioned) spawned the creation of PNG image compression format as a patent-free alternative.

In the case of flag-planting patents, you’re left wondering what exactly was invented, because the patent doesn’t describe anything innovative or which might require any sort of time investment to come up with.

Unfortunately, flag-planting patents, which are disproportionately powerful in an anti-competitive sense, are becoming dramatically more common within the realm of software patent claims. The reason why is anyone’s guess, but it may have to do with the interdependence of many complex though well-defined components as used in the industry at the exclusion of all theoretical alternatives. This scenario allows for a patent to claim the entire background infrastructure, and thereby describe the whole landscape of solutions as though it were a singular machine, without explicitly enumerating any unique mechanism used to solve the specific problem at hand. This way, the patent covers any real-world machine that solves the specific problem.

This isn’t a disaster waiting to happen, it’s a disaster already happened.

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