Lowering the Bar

by on February 3, 2006 · 12 comments

This proposal from IEEE for a “patent lite” regime to augment the current patent system strikes me as a very bad idea. It would lower the bar for patents by eliminating the obviousness requirements, thereby expediting the review process and allowing “limited patents” to be granted more quickly. And “limited patents” would have a term of only four years.

This proposal seems like it would take the worst features of our current patent system and make them even worse:

In fact, no examination–beyond a check to see that the minimum filing requirements are met–would be performed before issuing a registration number, which the patent owner would be required to use alongside the invention to gain protection. Because there would be no official determination of novelty, there would be no presumption of validity for the limited patent. Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent.

Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation. At the time of the filing of a lawsuit, the proceeding would be stayed pending the patent office’s examination. That exam would take less time than a regular patent examination, because obviousness would not be considered. In addition, the alleged violator of the protection would be able to provide prior art for the examiner to consider, evidence that would substantially reduce the cost and duration of litigation, particularly when there is evidence that protection should not be granted because the technology isn’t novel.

Because the goal is to prevent knockoffs, it would protect against these who were aware of technology in the market. Showing that the technology had been independently created before the patentee’s first commercial use would be an absolute defense. But it would be a personal defense; the patent would still be valid against others who cannot show substantial development of their products prior to the patented product’s introduction.

I think the idea of trying to “prevent knockoffs” really gets to the heart of what’s wrong with software patents in the first place. Google is a knockoff of Altavista. Windows is a knockoff of the Macintosh. Linux is a knockoff of Unix. Internet Explorer is a knockoff of Netscape. Excel is a knockoff of VisiCalc. Ordinarily, we call such knockoffs “competitors.” Yet in the bizarro world of software patents, when a company becomes “aware of technology in the market” and decides to build their own technology to do the same job, (even if it’s developed independently) that’s something the law ought to punish.

Patents are supposed to protect specific implementations of an idea, not the idea itself. “Knockoffs” are supposed to be permitted–even encouraged–as long as the knockoff isn’t implemented in the specific way described in the patent. But because of the nature of software, there isn’t any clear difference between an idea and its implementation. (And implementations are already protected by copyright, so it’s not clear why addition protection is needed at all). As a result, you wind up with broad concepts, such as one-click shopping or wireless email being granted patent protection. This proposal will only make that problem worse.

Hat tip to Mike.

  • rockstud

    Under Hollaar’s proposal, both the one-click shopping and wireless email patents would both already have expired.

    Sure, 4-years of a bad patent is not exactly plum pudding, but it’s a hell of a lot better than 2 decades of a bad patent. Especially if you defang the 4-year patent by removing the presumption of validity and allowing the independent invention defense — both of which are there, more or less, in Hollaar’s proposal.

    I don’t think Hollaar’s proposal is perfect. For example, I wouldn’t allow a patentee to seek both a traditional and a limited patent at the same time, or in succession (something that he seems to imply would be possible). But I’d take Hollaar’s proposal as a very serious compromise that gets us away from a load of abuse that we currently can’t get past.

  • rockstud

    Under Hollaar’s proposal, both the one-click shopping and wireless email patents would both already have expired.

    Sure, 4-years of a bad patent is not exactly plum pudding, but it’s a hell of a lot better than 2 decades of a bad patent. Especially if you defang the 4-year patent by removing the presumption of validity and allowing the independent invention defense — both of which are there, more or less, in Hollaar’s proposal.

    I don’t think Hollaar’s proposal is perfect. For example, I wouldn’t allow a patentee to seek both a traditional and a limited patent at the same time, or in succession (something that he seems to imply would be possible). But I’d take Hollaar’s proposal as a very serious compromise that gets us away from a load of abuse that we currently can’t get past.

  • http://www.angryblog.org/ Tim

    rockstud: I agree except that he seems to regard his proposal as being in addition to, not instead of, the current patent regime. And I got the impression that Holaar’s proposal only allows the independent invention defense if it were independently invented prior to the patent being issued. So if Amazon patented one-click shopping in 1997, no one who hadn’t already implemented that feature would be allowed to do so until 2001.

    If we could trade traditional software patent for Hollaar’s proposal, that’s a trade I might take. But only because software patents as they exist now are so problematic.

  • http://www.angryblog.org/ Tim

    rockstud: I agree except that he seems to regard his proposal as being in addition to, not instead of, the current patent regime. And I got the impression that Holaar’s proposal only allows the independent invention defense if it were independently invented prior to the patent being issued. So if Amazon patented one-click shopping in 1997, no one who hadn’t already implemented that feature would be allowed to do so until 2001.

    If we could trade traditional software patent for Hollaar’s proposal, that’s a trade I might take. But only because software patents as they exist now are so problematic.

  • rockstud

    Tim, I completely agree that Hollaar’s proposal doesn’t go as far as I’d like. And, as you point out, it has more of a supplemental nature than a supplanting one. And yes, its sort of a half-independent-invention-defense.

    I’m also entirely on the same boat as you as far as software (and business method) patents are concerned: these should *never* have been allowed, and we’d be better off making that distinction right now and calling any patent that can be implemented purely as software invalid.

    Unfortunately, I don’t think the powerful interests would bite on abolishing software patents, which means we have no chance of getting that type of reform through at the present.

    So, I take a pragmatic stance: encourage anything that moves us closer to that goal rather than farther away from it. And I think Hollaar’s proposal, with a few minor tweaks, does that.

    The reason it is important to compromise in this way is that it really is the only way that those parties with huge patent portfolios will ever come over to our side; as their portfolios begin to fill with limited patents and they begin to understand that a 4-year monopoly is plenty, they’ll start to understand that their traditional 20-year patents really are overkill. And then they might start asking if 4 years isn’t too long. And then if they even need them at all.

    Perhaps that is wishful thinking.

    But the other side of the coin is also compelling: Hollaar’s proposal is the most radical yet to receive serious consideration in print. And it comes from someone very well credentialed and respected in this area. If we can’t see any good in his proposal, the IP-maximalism camp might just decide that there is no way to satisfy its critics, and say to hell with it: we’ll keep ramming “reform” down the pipe like we did last year. Of course, we know what that looks like: it benefits existing patent stakeholders and large corporations more than anyone else.

  • rockstud

    Tim, I completely agree that Hollaar’s proposal doesn’t go as far as I’d like. And, as you point out, it has more of a supplemental nature than a supplanting one. And yes, its sort of a half-independent-invention-defense.

    I’m also entirely on the same boat as you as far as software (and business method) patents are concerned: these should *never* have been allowed, and we’d be better off making that distinction right now and calling any patent that can be implemented purely as software invalid.

    Unfortunately, I don’t think the powerful interests would bite on abolishing software patents, which means we have no chance of getting that type of reform through at the present.

    So, I take a pragmatic stance: encourage anything that moves us closer to that goal rather than farther away from it. And I think Hollaar’s proposal, with a few minor tweaks, does that.

    The reason it is important to compromise in this way is that it really is the only way that those parties with huge patent portfolios will ever come over to our side; as their portfolios begin to fill with limited patents and they begin to understand that a 4-year monopoly is plenty, they’ll start to understand that their traditional 20-year patents really are overkill. And then they might start asking if 4 years isn’t too long. And then if they even need them at all.

    Perhaps that is wishful thinking.

    But the other side of the coin is also compelling: Hollaar’s proposal is the most radical yet to receive serious consideration in print. And it comes from someone very well credentialed and respected in this area. If we can’t see any good in his proposal, the IP-maximalism camp might just decide that there is no way to satisfy its critics, and say to hell with it: we’ll keep ramming “reform” down the pipe like we did last year. Of course, we know what that looks like: it benefits existing patent stakeholders and large corporations more than anyone else.

  • http://www.angryblog.org/ Tim

    I don’t pretend to be an expert on Washington politics, so I don’t know if abolishing software patents is politically feasible. Obviously it’s not *easy*, but it seems like it should be possible. This is particularly the case because a patent portfolio, no matter how big, doesn’t protect you against a patent troll. As more and more companies follow in NTP’s footprints, I think those vested interests may start to re-think the wisdom of being exposed to that kind of risk.

    In addition, it’s not clear to me that the Microsofts and IBMs of the world really profit all that much from their patent portfolios. Their primary value appears to me to be defensive: they use them to prevent anybody else from suing them. If they could be certain that their competitors would never sue them for infringement, there’s a pretty good chance that some of them would decide software patents aren’t worth the bother.

  • http://www.angryblog.org/ Tim

    I don’t pretend to be an expert on Washington politics, so I don’t know if abolishing software patents is politically feasible. Obviously it’s not *easy*, but it seems like it should be possible. This is particularly the case because a patent portfolio, no matter how big, doesn’t protect you against a patent troll. As more and more companies follow in NTP’s footprints, I think those vested interests may start to re-think the wisdom of being exposed to that kind of risk.

    In addition, it’s not clear to me that the Microsofts and IBMs of the world really profit all that much from their patent portfolios. Their primary value appears to me to be defensive: they use them to prevent anybody else from suing them. If they could be certain that their competitors would never sue them for infringement, there’s a pretty good chance that some of them would decide software patents aren’t worth the bother.

  • rockstud

    I think the defensive patent portfolio strategy has largely backfired, and instead of NTP being a cause for reform, we are starting to see the holders of these large defensive patent portfolios start to use them offensively. For example, look at Microsoft’s pledge to earn royalties from its FAT patents. And IBM is legend at extracting royalties from its extensive patent portfolio. HP’s new “invent” slogan likewise revolves around creating new revenue streams from its [new] patents.

    This is frightening for several reasons, not least of which is the fact that instead of begging for meaningful reform in the face of trolls like NTP, these companies are seeking ways to be more NTP-like. And if you look at the reform proposals backed by the likes of Microsoft, it is clear that the only real goal of the changes is to make it so that only large companies (who can be satisfied by playing the cross-licensing game) are able to amass the arsenal needed to wage patent warfare. From Microsoft’s perspective, this is reasonable; only small-time inventors (trolls) and little failed startups (trolls) ever sue them over patent rights. Anything that disarms those two camps from obtaining more patent weapons seems reasonable to Bill & co. (and all other large companies threatened by patent abuses).

    Hollaar’s ideas at least extend more access to the little guy, which is, in contrast, the polar opposite of patent reform backed by big corps.

    If you think there is a way we can convince our Microsoft/IBM/Oracle/Sun/HP-backed legislators to abolish software patents in the midst of all the lobbying that these guys can put up, I’d like to hear your plan for doing so and donate my time and effort. But it just doesn’t sound feasible to me right now. We have to give these guys a taste of the freedom that will come when the software-patent-monopoly game is weakened to convince them that destroying it might actually be in their best interests.

  • rockstud

    I think the defensive patent portfolio strategy has largely backfired, and instead of NTP being a cause for reform, we are starting to see the holders of these large defensive patent portfolios start to use them offensively. For example, look at Microsoft’s pledge to earn royalties from its FAT patents. And IBM is legend at extracting royalties from its extensive patent portfolio. HP’s new “invent” slogan likewise revolves around creating new revenue streams from its [new] patents.

    This is frightening for several reasons, not least of which is the fact that instead of begging for meaningful reform in the face of trolls like NTP, these companies are seeking ways to be more NTP-like. And if you look at the reform proposals backed by the likes of Microsoft, it is clear that the only real goal of the changes is to make it so that only large companies (who can be satisfied by playing the cross-licensing game) are able to amass the arsenal needed to wage patent warfare. From Microsoft’s perspective, this is reasonable; only small-time inventors (trolls) and little failed startups (trolls) ever sue them over patent rights. Anything that disarms those two camps from obtaining more patent weapons seems reasonable to Bill & co. (and all other large companies threatened by patent abuses).

    Hollaar’s ideas at least extend more access to the little guy, which is, in contrast, the polar opposite of patent reform backed by big corps.

    If you think there is a way we can convince our Microsoft/IBM/Oracle/Sun/HP-backed legislators to abolish software patents in the midst of all the lobbying that these guys can put up, I’d like to hear your plan for doing so and donate my time and effort. But it just doesn’t sound feasible to me right now. We have to give these guys a taste of the freedom that will come when the software-patent-monopoly game is weakened to convince them that destroying it might actually be in their best interests.

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