More on NTP’s Ridiculous Patents

by on December 12, 2005 · 16 comments

I just read the Federal Circuit decision from last year in the NTP v. RIM decision. And if I’m reading it right (I should stress here that I’m not an expert on patent law) NTP’s patents covered a relatively broad class of wireless email services: more or less, wireless email systems in which the user could both view his email on a wireless device and download them to a desktop computer.

That’s simply ridiculous. Email has been around for more than a quarter century. Wireless technology has been around for decades. The idea of combining the two is blindingly obvious. (And it would have been pretty obvious even back in 1991, when the first NTP patent was granted) Once the technologies for wireless transmission of digital data became cheap enough to be cost-effective for consumer products, it was inevitable that people would exchange email with it.

In other words, once you’ve got wireless technology and an email network, combining the two is a “shallow” problem. It takes some engineering know-how to do, but it doesn’t require any great flashes of genius. This, I think, is true of virtually all programming tasks. The challenge in software development lies in managing the complexity created when you’re building a program that has thousands of components that must all work together. The best programmers are those who can make a program that’s more than the sum of its parts by organizing them in a particularly clever or elegant manner. But no one component by itself is an “invention.”

Imagine if, in 1920, somebody had tried to patent car radios. At that time, cars and radios were both well-known inventions, but (based on a very cursory Google search, at least) you couldn’t buy a car with a radio. The patent office, I assume, would have thrown the patent application out, ruling that combining two well-known devices in a common-sense way isn’t a new invention. It doesn’t take very much effort to think of the concept, and there’s no reason why someone should be able to extort money from everyone else who stumbles on the idea simply because he happened to think of it first.

Patent law requires that inventions be “non-obvious” precisely in order to prevent precisely that kind of extortion. The idea is that the inventor should have to expend a significant amount of effort developing the new invention before the invention will merit the protection of patent law.

But viewed from this perspective, virtually all software “inventions” are obvious–that is, they involve combining well-known components (albeit a large number of them) in common-sense ways. They only look non-obvious to non-programmers because the non-programmers aren’t familiar with the underlying components. Unfortunately, non-programmers tend to be the ones who make decisions in patent cases.

  • http://tieguy.org/blog/ Luis Villa

    Tim, it is my understanding that recent (’90s?) patent court rulings have held out that combination is basically always non-obvious- which is why we have so many silly patents for e-commerce. I’m sure one of your co-authors can give you a lesson on this :)

  • http://tieguy.org/blog/ Luis Villa

    Tim, it is my understanding that recent (’90s?) patent court rulings have held out that combination is basically always non-obvious- which is why we have so many silly patents for e-commerce. I’m sure one of your co-authors can give you a lesson on this :)

  • http://www.techdirt.com/ Mike Masnick

    Welcome on board Tim. Some of us have been screaming about this for years and years… Good to have more voices recognize how awful this situation is.

    Of course, RIM is not completely innocent either. They’ve been one of the bigger enforcers of patents on their side, as well — so there’s a bit of “live by the sword, die by the sword” in all of this.

    Still, the NTP situation is particularly ridiculous, and the stories that make it to the press have been problematic in that very few reporters have taken the time to actually understand the issues involved (as if that’s a surprise).

    As one of our analysts, Derek Kerton, is fond of saying: If NTP could patent wireless email, how come no one has patented combining wireless address books or wireless cameras. You shouldn’t get a patent for mixing two things like this together, but NTP did… and, for some reason, it’s taking the USPTO forever to figure out that it was a mistake. Even worse, they’re not doing it based on the obviousness test, but on “prior art”. It’s unfortunate that the USPTO seems to have decided that prior art is the test for obviousness.

  • http://www.techdirt.com/ Mike Masnick

    Welcome on board Tim. Some of us have been screaming about this for years and years… Good to have more voices recognize how awful this situation is.

    Of course, RIM is not completely innocent either. They’ve been one of the bigger enforcers of patents on their side, as well — so there’s a bit of “live by the sword, die by the sword” in all of this.

    Still, the NTP situation is particularly ridiculous, and the stories that make it to the press have been problematic in that very few reporters have taken the time to actually understand the issues involved (as if that’s a surprise).

    As one of our analysts, Derek Kerton, is fond of saying: If NTP could patent wireless email, how come no one has patented combining wireless address books or wireless cameras. You shouldn’t get a patent for mixing two things like this together, but NTP did… and, for some reason, it’s taking the USPTO forever to figure out that it was a mistake. Even worse, they’re not doing it based on the obviousness test, but on “prior art”. It’s unfortunate that the USPTO seems to have decided that prior art is the test for obviousness.

  • Doug Lay

    I’m inclined to agree with you about the NTP situation, but I think your argument here about invention in software may be overbroad. What about the RSA public-key encryption algorithm? Obvious? I think not. For a more marginal case, how about PageRank?

    Linus Torvalds expressed an interesting idea a few years back – allow patents on software but with a much shorter term, say 3 to 5 years. I find this a pretty interesting idea, and I could support it IF it were combined with much more rigorous testing for non-obviousness and prior art on the part of the PTO. Unfortunately, I doubt the PTO is even remotely capable of getting its act together, and certainly doing away with software patents altogether would be preferable to the current situation.

  • Doug Lay

    I’m inclined to agree with you about the NTP situation, but I think your argument here about invention in software may be overbroad. What about the RSA public-key encryption algorithm? Obvious? I think not. For a more marginal case, how about PageRank?

    Linus Torvalds expressed an interesting idea a few years back – allow patents on software but with a much shorter term, say 3 to 5 years. I find this a pretty interesting idea, and I could support it IF it were combined with much more rigorous testing for non-obviousness and prior art on the part of the PTO. Unfortunately, I doubt the PTO is even remotely capable of getting its act together, and certainly doing away with software patents altogether would be preferable to the current situation.

  • http://www.quicksilverscreen.com/ Steve

    I personally feel that copyrights/patents should be completely abolished. There was invention before patents, and music before copyright. It seems to me that the only time I hear anyone take the ‘pro-IP’ stance they always have some sort of vested interest in it.

    I have a post on my blog that you may be interested in, it is about how every letter and number in the english language is trademarked by one or more companys, with links to USPTO searches to prove it.

  • http://www.quicksilverscreen.com/ Steve

    I personally feel that copyrights/patents should be completely abolished. There was invention before patents, and music before copyright. It seems to me that the only time I hear anyone take the ‘pro-IP’ stance they always have some sort of vested interest in it.

    I have a post on my blog that you may be interested in, it is about how every letter and number in the english language is trademarked by one or more companys, with links to USPTO searches to prove it.

  • dwb

    I hold four patents and also review patents for our legal group from time to time. I was told that one of the requirements for a patent is to be innovative and non-obvious to someone practiced in the art. In my opinion, all four of my patents are obvious, by my engineer definition of obvious.

    The patent lawyers have told me over and over again that my definition of obvious is not the legal definition of obvious. This is usually after they find out that I have not written up a disclosure on something I’m working on. I have never been able to get them to explain the legal definition of obvious in a way that ever made sense to me. So, I just write up my invention disclosures and submit them.

    We don’t patent everything we can. We only patent things that will protect the products that we manufacture. These are mostly hardware but some are software running in the hardware.

  • dwb

    I hold four patents and also review patents for our legal group from time to time. I was told that one of the requirements for a patent is to be innovative and non-obvious to someone practiced in the art. In my opinion, all four of my patents are obvious, by my engineer definition of obvious.

    The patent lawyers have told me over and over again that my definition of obvious is not the legal definition of obvious. This is usually after they find out that I have not written up a disclosure on something I’m working on. I have never been able to get them to explain the legal definition of obvious in a way that ever made sense to me. So, I just write up my invention disclosures and submit them.

    We don’t patent everything we can. We only patent things that will protect the products that we manufacture. These are mostly hardware but some are software running in the hardware.

  • Dan Z.

    Tim: Are you saying that no software engineer should be able to protect their intellectual property? I think you are really missing the boat. Just because an idea is obvious doesn’t mean that the implementation of that idea is as trivial as you make it.

    The challenge in software engineering is not just merging “parts” together to reduce complexity. Managing complexity is important. However, sometimes you have to create the parts as well.

    Now, I do not as of yet have an opinion on if NTPs patents are legitimate or not. However, I really must reject the claims that you have made about software engineering.

  • Dan Z.

    Tim: Are you saying that no software engineer should be able to protect their intellectual property? I think you are really missing the boat. Just because an idea is obvious doesn’t mean that the implementation of that idea is as trivial as you make it.

    The challenge in software engineering is not just merging “parts” together to reduce complexity. Managing complexity is important. However, sometimes you have to create the parts as well.

    Now, I do not as of yet have an opinion on if NTPs patents are legitimate or not. However, I really must reject the claims that you have made about software engineering.

  • shorturl

    fadab45a48bd Good work http:/0zu.tw/ shorturl

  • http://http:/0zu.tw/ shorturl

    fadab45a48bd Good work http:/0zu.tw/ shorturl

  • http://www.abc-acupuncture.com/baxqorav tramadol

    81e31de21f46 My homepage http://www.abc-acupuncture.com/baxqorav tramadol

  • http://www.abc-acupuncture.com/baxqorav tramadol

    81e31de21f46 My homepage http://www.abc-acupuncture.com/baxqorav tramadol

Previous post:

Next post: