Software Patent of the Week: Where Does a 600-pound Patent Sit?

by on August 12, 2006 · 20 comments

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. Mike Masnick suggested that I analyze this patent this week. It was granted to a company called Cordance, which is suing Amazon, claiming that their one-click ordering system infringes on it. The patent claims methods for automatically synchronizing contact information between client and server computers.

I wouldn’t want to disappoint Mike, so here we go: this patent is enormous. No, seriously, if the Guinness Book for World Records had an entry for “world’s largest patent,” I bet this patent would be in the running. The thing weighs in at about 85,000 words, about the length of a short novel. But that’s not all! Numerous other works, including “Kris Jamsa and Ken Cope, Internet Programming (1995),” “Marshall T. Rose, The Internet Message: Closing the Book with Electronic Mail (1993),” “John December and Neil Randall, The World Wide Web Unleashed (1996),” and assorted RFCs are also “incorporated herein by reference.” When you include all that supplementary information, this patent probably rivals the Bible for wordiness.

The patent is big in other ways too:

In one aspect of the present invention, a communications system is used to coordinate communications between providers and consumers. Provider computers transfer information stored in the provider computer through a communications network to a consumer computer. The information includes processes for updating the transferred information in the consumer computer when the information in provider computer has changed. For “push” processes, the provider computer maintains address data necessary to transfer updated information to various consumers. For “pull” processes, the consumer computer uses information transferred from the provider to access a location where the provider information is stored to determine whether it has been updated and to retrieve it if necessary.

According to another aspect of the present invention, existing communications networks and network accessing programs are used to increase the functionality of the communications system. The Internet and World Wide Web, or similar type networks, are used to access and transfer the information. According to this aspect, information is created and maintained according to a recognized protocol, such as HTTP, MIME and HTML, which can be used to access other information. An appropriate display program, such as a web browser, is used to retrieve and display the information.

So this “invention” encompasses both “push” and “pull” update methods, and includes all Internet-based communications protocols. But that’s not all!

Any communications network may be used to connect the provider computer and the consumer computer, including direct network connections, server-based environments, telephone networks, the Internet, intranets, local area networks (LANS), wide area networks (WANS), the World Wide Web, other webs, and even transfers of data on physical media such as disks or computer-readable paper outputs via postal communications networks. The particulars of the communications network illustrated as preferred embodiments are not limiting features of the invention.

And a little later we’re informed that “any kind of data communications network and any kind of user interface can be used” to implement the invention. So any time anyone uses any communications medium to automatically keep contact information in sync between a business and its customers, it’s infringing on this “invention.”

There’s no way anyone could call this an “invention” with a straight face. The use of “objects”–assuming that even has a clear meaning in this context–is hardly an innovative or original idea. Objects have been widely used for all sorts of programming tasks for decades.

I share Mike’s confusion about how Amazon’s 1-click system could be infringing on the patent, given that Amazon has been doing 1-click shopping for close to a decade now. It might be, as Mike suggests, that they changed their one-click system in the last couple of years in a way that makes Amazon’s 1-click system more like this patent.

The bottom line is that there’s no conceivable way that a patent like this incentivizes the creation of more or better software. It would take an engineer hours–if not days–to even read the whole thing, to say nothing of reviewing all of his code to make sure none of it does any of the things described in the patent. Do we seriously expect every programmer who writes e-commerce software to read this patent (and probably dozens of others like it) just to make sure he hasn’t infringed any of them?

People like Nathan Myhrvold like to compare patents to traditional forms of property like land. But how well would our economy work if, in order to figure out whether you were allowed to build a building in a particular spot, you had to read thousands of pages of dense legal verbiage describing the holdings of other property holders? Such a system would bring our economy to its knees. The only reason that our patent system hasn’t brought the software industry to its knees is that companies tell their engineers to ingore the patent system, and they let their lawyers deal with any fallout.

  • Steve R.

    Quiznos is running a humorous TV commercial spoofing that when a Quiznos competitor sells barbeque sauce that they are stealing Quiznos’ intellectual property. The appearance of commercials spoofing a bad business practices is an indication that the irrationality of the bad business practice has been recognized by the public conscious. One can only hope that the lawmakers and the judicial system recognize that open-ended concepts, such as barbeque sauce or one-click ordering, simply cannot be patented.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Quiznos is running a humorous TV commercial spoofing that when a Quiznos competitor sells barbeque sauce that they are stealing Quiznos’ intellectual property. The appearance of commercials spoofing a bad business practices is an indication that the irrationality of the bad business practice has been recognized by the public conscious. One can only hope that the lawmakers and the judicial system recognize that open-ended concepts, such as barbeque sauce or one-click ordering, simply cannot be patented.

  • http://weblog.ipcentral.info/ Noel Le

    Hmm, I believe Myhrvold used real property as a loose analogy in his testimony, quietly emphasizing the concept of private ownership. He only wanted to simplify IP to Hill staffers and and the House committee rather than to compare the economic models of forms of property.

  • http://weblog.ipcentral.info/ Noel Le

    Again, the scope of a patent will be determined by the courts and USPTO. I question the value of judging a patent merely on its claims. Mark Lemley wrote about this several years ago, when he outlined the flexibility courts have in patent enforcement and how this ability can be leveraged to adapt the patent system to different kinds of innovations, thereby avoiding a “one size fits all” approach which would deter the effectiveness of patents in facillitating innovation. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=431360.

    Also take a look at an even earlier Lemley paper, where he argues that traditional patent law applied to software would result in overly broad patents and resemble Kitch’s prospect theory, which would be especially counter-productive in software v other industries (although I question some of Lemley’s positions I’m just trying to point you to some good articles). http://www.law.berkeley.edu/journals/clr/library/cohen-lemley01.html.

  • http://weblog.ipcentral.info/ Noel Le

    Hmm, I believe Myhrvold used real property as a loose analogy in his testimony, quietly emphasizing the concept of private ownership. He only wanted to simplify IP to Hill staffers and and the House committee rather than to compare the economic models of forms of property.

  • http://weblog.ipcentral.info/ Noel Le

    Again, the scope of a patent will be determined by the courts and USPTO. I question the value of judging a patent merely on its claims. Mark Lemley wrote about this several years ago, when he outlined the flexibility courts have in patent enforcement and how this ability can be leveraged to adapt the patent system to different kinds of innovations, thereby avoiding a “one size fits all” approach which would deter the effectiveness of patents in facillitating innovation. http://papers.ssrn.com/sol3/papers.cfm?abstract….

    Also take a look at an even earlier Lemley paper, where he argues that traditional patent law applied to software would result in overly broad patents and resemble Kitch’s prospect theory, which would be especially counter-productive in software v other industries (although I question some of Lemley’s positions I’m just trying to point you to some good articles). http://www.law.berkeley.edu/journals/clr/librar….

  • http://www.techliberation.com/ Tim Lee

    Noel: Thanks for pointing out those papers. I’ll have to give them a read.

    My point is that this “invention” never should have gotten into the system in the first place. Hopefully the courts and the USPTO will interpret it narrowly, but the point is that defendants in patent infringement suits have to spend hundreds of thousands of dollars in legal fees before they learn precisely how the courts will interpret it. If they gamble that the courts will interpret the patent narrowly and lose, they may face penalties in the tens, if not hundred of millions of dollars.

    There’s nothing about this patent that promote innovation. So I don’t really care what scope the courts give it, the fact that the patent was granted at all is evidence that our patent system is screwed up.

  • http://weblog.ipcentral.info/ Noel Le

    Here is precisely where we disagree: “fact that the patent was granted at all is evidence that our patent system is screwed up.” OK, but what do we do now. I view that if a court enforces a terrible patent, then our patent system is screwed up.

    Funny you leave off criticism for Amazon’s 1-click patent:)

  • http://www.techliberation.com/ Tim Lee

    Noel: Thanks for pointing out those papers. I’ll have to give them a read.

    My point is that this “invention” never should have gotten into the system in the first place. Hopefully the courts and the USPTO will interpret it narrowly, but the point is that defendants in patent infringement suits have to spend hundreds of thousands of dollars in legal fees before they learn precisely how the courts will interpret it. If they gamble that the courts will interpret the patent narrowly and lose, they may face penalties in the tens, if not hundred of millions of dollars.

    There’s nothing about this patent that promote innovation. So I don’t really care what scope the courts give it, the fact that the patent was granted at all is evidence that our patent system is screwed up.

  • http://weblog.ipcentral.info/ Noel Le

    Here is precisely where we disagree: “fact that the patent was granted at all is evidence that our patent system is screwed up.” OK, but what do we do now. I view that if a court enforces a terrible patent, then our patent system is screwed up.

    Funny you leave off criticism for Amazon’s 1-click patent:)

  • http://www.techliberation.com/ Tim Lee

    It doesn’t bother you that companies have to spend millions of dollars defending themselves against patents that shouldn’t have been issued in the first place?

  • http://www.techliberation.com/ Tim Lee

    It doesn’t bother you that companies have to spend millions of dollars defending themselves against patents that shouldn’t have been issued in the first place?

  • Noel Le

    Companies can invent around, license, cross license, appeal for USPTO reexam, go to a mediator or go to court. I can see how the organization of OSS makes these difficult but they are transactional costs the rest of the industry works with. Ron Mann did some empirical research on how well this works out. Further the Lemley paper I pointed you to found that very few patents are ever litigated and those that are usually belong to small companies.

  • Noel Le

    Companies can invent around, license, cross license, appeal for USPTO reexam, go to a mediator or go to court. I can see how the organization of OSS makes these difficult but they are transactional costs the rest of the industry works with. Ron Mann did some empirical research on how well this works out. Further the Lemley paper I pointed you to found that very few patents are ever litigated and those that are usually belong to small companies.

  • Steve R.

    Noel: We exist in a nightmare reality where “property rights” are being claimed out of thin air for every conceivable concept. I just read an article in the New York Times where companies are acquiring patents, not for the production of products, but as a financial tool to generate income through licensing. This implies that these companies will eventually begin trolling to uncover “violators” who have not been paying a licensing fee. As noted in an earlier post, Quiznos is claiming (spoof commercial) that it owns the intellectual property rights to Barbaque Sauce!!!!

    We have lost touch with what a patent is supposed to accomplish. Based on the avalanche of lawsuits and bad legislation, the ability of companies to “invent around” is severely constrained either through acquiescence or by intimidation. Further, as Tim points out, companies should not have to spend big bucks defending themselves against frivolous lawsuits. The Patent Office should not simply accept a patent with minimal review, but thorougly evaluate it and aggressively reject frivolous patents.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Noel: We exist in a nightmare reality where “property rights” are being claimed out of thin air for every conceivable concept. I just read an article in the New York Times where companies are acquiring patents, not for the production of products, but as a financial tool to generate income through licensing. This implies that these companies will eventually begin trolling to uncover “violators” who have not been paying a licensing fee. As noted in an earlier post, Quiznos is claiming (spoof commercial) that it owns the intellectual property rights to Barbaque Sauce!!!!

    We have lost touch with what a patent is supposed to accomplish. Based on the avalanche of lawsuits and bad legislation, the ability of companies to “invent around” is severely constrained either through acquiescence or by intimidation. Further, as Tim points out, companies should not have to spend big bucks defending themselves against frivolous lawsuits. The Patent Office should not simply accept a patent with minimal review, but thorougly evaluate it and aggressively reject frivolous patents.

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