Software Patent of the Week: The Reluctant Inventor

by on August 17, 2006 · 32 comments

This week’s software patent comes courtesy of my friend Rob LeGrand, a grad student at Washington University who previously worked for IBM. As he recounts on his blog,

I and two other guys filed for four software patents while working for IBM in Austin about five years ago but I never got around to checking whether any of them had made it all the way through the process. Well, we checked, and two of the four are now patents! You can find them at the Patent and Trademark Office’s database; the patent numbers are 6,778,837 and 6,898,628. (Checking the patent application database shows that the other two filings never made it even that far; presumably, IBM’s lawyers didn’t think they were worth the expense. Anyway, IBM gave us inventors little bonuses for all four filings.)

I suppose they’ll look good on my r©sum©, and I guess I’m proud to have my name on something that was deemed important and original enough to be patented, but I’m also a little ashamed. I mean, what is a patent, really? It’s an artificial restriction on the commercial use of an idea. Not an actual piece of property, but an idea. I have no desire to restrict anyone from implementing our ideas. And while most patents cover a specific implementation of a new idea, complete with detailed diagrams of its inner workings, software patents usually just describe what the invention does, not how it does it. Read about our patents and you’ll find prose more conceptual than concrete, written in dense lawyer-speak designed to cover as many potential products as possible.

I think Rob’s take on patents is a little more radical than mine. I don’t have a problem with patenting an idea in principle, as long as it’s novel and non-obvious as required by patent law. But Rob seems to feel that software patents are particularly problematic, given that, as he says, they tend to describe what the patents do, rather than how they do it. (since the “how” is described by source code, which is already protected by copyright law).

As Rob says, his patent doesn’t appear to be an exception. Basically, the patent covers the concept of using one’s GPS location as an input for an authentication process. Although implementing such an idea could be somewhat challenging, the patent doesn’t go into a lot of detail about how such an implementation might work. And while using GPS as an authentication method is a clever idea, it seems likely that it would be a fairly obvious to someone who had an actual application for it, rather than simply writing about it in the abstract.

  • http://www.codemonkeyramblings.com MikeT

    You know, software patents wouldn’t be an issue if they were given different lifespans than other patents. If they were good for only 3-5 years, which is their effective value in most cases, given the rapid changeover of most technologies, it’d be non-issue. I could easily be persuaded to support software patents as a necessary evil if they weren’t so long lived. The current patent regime is only appropriate for companies like pharmaceuticals that actually need the long lived patents to see real profits from their research. Most IT “research” is just tinkering by comparison.

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

    MikeT, check out this article, which you kind of independently, hehe, summarize. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=431360.

  • http://www.codemonkeyramblings.com MikeT

    You know, software patents wouldn’t be an issue if they were given different lifespans than other patents. If they were good for only 3-5 years, which is their effective value in most cases, given the rapid changeover of most technologies, it’d be non-issue. I could easily be persuaded to support software patents as a necessary evil if they weren’t so long lived. The current patent regime is only appropriate for companies like pharmaceuticals that actually need the long lived patents to see real profits from their research. Most IT “research” is just tinkering by comparison.

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

    MikeT, check out this article, which you kind of independently, hehe, summarize. http://papers.ssrn.com/sol3/papers.cfm?abstract….

  • http://www.codemonkeyramblings.com MikeT

    Noel, I will try to check that out when I have some free time this weekend. The reason that software patents are so harmful is that the value of most software technology is limited to a few years.

    The biggest problem with software patents is that their supporters have not recognized that it is the industry’s trend to standardize in an extreme way around one platform. If you can’t become compatible with that platform at little or no cost, you’re screwed. What software patent supporters have not explained is why Microsoft would ever license patents like the ones it has on SMB at non-exorbitant rates. Seriously, what incentive do they have to provide their patents at a reasonable rate to companies wanting to compete with them, knowing that those patents prevent them from being able to compete with Microsoft? Just an example.

    The problem is that we have treaty obligations to consider, and I am not sure it’s even legally possible to meet those and discriminate on software patents. If I have to choose a binary option instead of a middle ground of 2-5 years for software patents, I’d choose the lesser evil of not protecting the software industry at all rather than risk creating a bunch of legal vampires.

  • http://www.codemonkeyramblings.com MikeT

    Noel, I will try to check that out when I have some free time this weekend. The reason that software patents are so harmful is that the value of most software technology is limited to a few years.

    The biggest problem with software patents is that their supporters have not recognized that it is the industry’s trend to standardize in an extreme way around one platform. If you can’t become compatible with that platform at little or no cost, you’re screwed. What software patent supporters have not explained is why Microsoft would ever license patents like the ones it has on SMB at non-exorbitant rates. Seriously, what incentive do they have to provide their patents at a reasonable rate to companies wanting to compete with them, knowing that those patents prevent them from being able to compete with Microsoft? Just an example.

    The problem is that we have treaty obligations to consider, and I am not sure it’s even legally possible to meet those and discriminate on software patents. If I have to choose a binary option instead of a middle ground of 2-5 years for software patents, I’d choose the lesser evil of not protecting the software industry at all rather than risk creating a bunch of legal vampires.

  • enigma_foundry

    Well it should come as no surprise to anyone here that I am completely opposed to the software patents. Thank heavens for Europe, where this monumental abberation has not passed into law, and had generated significant popular outrage, as it well should.

    But what I find interesting here is an example of the scientific spirit, of sharing knowledge in the hope that others could use it. I am very optimistic that as such ideas permeate our society, and especially our educated classes, so these attitudes may one day be reflected in our laws.

    “I mean, what is a patent, really? It’s an artificial restriction on the commercial use of an idea. Not an actual piece of property, but an idea. I have no desire to restrict anyone from implementing our ideas.”

    MikeT: Yes, setting aside the First Amendment issues with software patents, there also economic issues as well. The economist F.A. von Hayek wrote about patents, and he was very concerned about the loss of competition that would occur due to the extension of patents. Certainly, software patents were not an issue in 1948 when this was written, but we should reflect upon these thoughts, when considering the enlargement of Patent Law:

    “The problem of the prevention of monopoly and the prevention of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trademarks, and the like. It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work…. Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect.”

    Source: F. A. von Hayek, “‘Free’ Enterprise and Competitive Order”

    Also, MikeT the issue of our treaty obligations is an important point, and that is a smoke screen that is brought up by those who wish to create or maintain software patents. In fact, if the US stopped pushing for software patents, they would probably quickly fade from those other countries. Japan alone has as repressive a system as America presently has.

    “Harmonization” was the term banded about by the pro-software lobby in Europe in their failed attempt to implement software patents. It did not affect the debate that much, and in the end software patents were defeated in Europe, despite all kinds of dirty tricks tried by the pro-software patent lobby.

    BTW, I was rather surprised by the knowledge of the issue of software patents during my annual trip to Poland several summers ago, when it was being actively debated at the European Parliament. And in the end, it was a vote by a Polish minister that lead to the scuppering of the software patent directive, when the issue was brought up in an agricultural meeting. You reap what you sow, I guess.

    That’s twice Poland has saved Western culture, the first time being when Jan Sobieski defeated the Ottomans at the 1683 Battle of Vienna.

  • http://enigmafoundry.wordpress.com eee_eff

    Well it should come as no surprise to anyone here that I am completely opposed to the software patents. Thank heavens for Europe, where this monumental abberation has not passed into law, and had generated significant popular outrage, as it well should.

    But what I find interesting here is an example of the scientific spirit, of sharing knowledge in the hope that others could use it. I am very optimistic that as such ideas permeate our society, and especially our educated classes, so these attitudes may one day be reflected in our laws.

    “I mean, what is a patent, really? It’s an artificial restriction on the commercial use of an idea. Not an actual piece of property, but an idea. I have no desire to restrict anyone from implementing our ideas.”

    MikeT: Yes, setting aside the First Amendment issues with software patents, there also economic issues as well. The economist F.A. von Hayek wrote about patents, and he was very concerned about the loss of competition that would occur due to the extension of patents. Certainly, software patents were not an issue in 1948 when this was written, but we should reflect upon these thoughts, when considering the enlargement of Patent Law:

    “The problem of the prevention of monopoly and the prevention of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trademarks, and the like. It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work…. Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect.”

    Source: F. A. von Hayek, “‘Free’ Enterprise and Competitive Order”

    Also, MikeT the issue of our treaty obligations is an important point, and that is a smoke screen that is brought up by those who wish to create or maintain software patents. In fact, if the US stopped pushing for software patents, they would probably quickly fade from those other countries. Japan alone has as repressive a system as America presently has.

    “Harmonization” was the term banded about by the pro-software lobby in Europe in their failed attempt to implement software patents. It did not affect the debate that much, and in the end software patents were defeated in Europe, despite all kinds of dirty tricks tried by the pro-software patent lobby.

    BTW, I was rather surprised by the knowledge of the issue of software patents during my annual trip to Poland several summers ago, when it was being actively debated at the European Parliament. And in the end, it was a vote by a Polish minister that lead to the scuppering of the software patent directive, when the issue was brought up in an agricultural meeting. You reap what you sow, I guess.

    That’s twice Poland has saved Western culture, the first time being when Jan Sobieski defeated the Ottomans at the 1683 Battle of Vienna.

  • Steve R.

    Enigma_foundary: “That’s twice Poland has saved Western culture, the first time being when Jan Sobieski defeated the Ottomans at the 1683 Battle of Vienna.” Great comment. I was somewhat unpopular on another blog this weekend for asserting that Western culture was the underdog and the victim of Islamic expansion until then. I was attempting to point out that Columbus’ voyage to the new world wasn’t simply a case of imperialistic expansion but actually a response to Islamic expansion pushing Western culture west and closing trade routes.

  • Steve R.

    Enigma_foundary: “That’s twice Poland has saved Western culture, the first time being when Jan Sobieski defeated the Ottomans at the 1683 Battle of Vienna.” Great comment. I was somewhat unpopular on another blog this weekend for asserting that Western culture was the underdog and the victim of Islamic expansion until then. I was attempting to point out that Columbus’ voyage to the new world wasn’t simply a case of imperialistic expansion but actually a response to Islamic expansion pushing Western culture west and closing trade routes.

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

    The patent holder’s view on patents isn’t relevant as he’s no longer involved in either the licensing, R&D or product development work surrounding it.

    Further, simplifying a patent’s claim in order to communicate its obviousness, lack of novelty or generality is somewhat circular in reasoning without citations to the construction.

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

    Noel, did I oversimplify the patent? If you think this isn’t an obvious patent, I’d be interested in your analysis.

  • http://www.codemonkeyramblings.com MikeT

    Noel, how does that work? In general, simplifying a technical concept is the best way to understand it. If the idea becomes “too easy” once the legalese and academicspeak bubblewrap come off, generally it’s not something that we’d call innovative.

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

    Show me the citations. I don’t have time to read the patent, and I would suspect that you would pick a patent suitable to your goals anyhow.

    You’ve run this software patent of the week thing for a while, but most of your analysis isn’t about the actual patent (rather you focus on the wordiness of the claim, the patent holders viewpoints, etc etc- similar to how you argued against Nick Carr in hopes of defending Benkler’s book, but you merely presented your own viewpoints while totally ignoring Benkler altogether).

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

    The patent holder’s view on patents isn’t relevant as he’s no longer involved in either the licensing, R&D; or product development work surrounding it.

    Further, simplifying a patent’s claim in order to communicate its obviousness, lack of novelty or generality is somewhat circular in reasoning without citations to the construction.

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

    Noel, I’m not sure what kind of citations you’re looking for. The patent’s only about 7 pages long; you should be able to skim it in less than 10 minutes.

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

    Noel, did I oversimplify the patent? If you think this isn’t an obvious patent, I’d be interested in your analysis.

  • http://www.codemonkeyramblings.com MikeT

    Noel, how does that work? In general, simplifying a technical concept is the best way to understand it. If the idea becomes “too easy” once the legalese and academicspeak bubblewrap come off, generally it’s not something that we’d call innovative.

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

    Show me the citations. I don’t have time to read the patent, and I would suspect that you would pick a patent suitable to your goals anyhow.

    You’ve run this software patent of the week thing for a while, but most of your analysis isn’t about the actual patent (rather you focus on the wordiness of the claim, the patent holders viewpoints, etc etc- similar to how you argued against Nick Carr in hopes of defending Benkler’s book, but you merely presented your own viewpoints while totally ignoring Benkler altogether).

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

    Noel, I’m not sure what kind of citations you’re looking for. The patent’s only about 7 pages long; you should be able to skim it in less than 10 minutes.

  • http://www.codemonkeyramblings.com MikeT

    Noel, I don’t have time to read the patent indepth, but here’s a simple breakdown of the submitter’s abstract for you from an implementation perspective:

    The present invention includes as one embodiment a method for automatically controlling access to a mobile computing device with pertinent data. The method includes predefining access parameters of the mobile computing device, determining an actual location of the mobile computing device and using the actual location of the mobile computing device to automatically control access to the mobile computing device based on the predefined access parameters. Also, the method includes storing the predefined access parameters in a private Internet networked location, accessing and updating the predefined access parameters and sending the updated access parameters to the mobile computing device.

    • The first sentence: we will use some sort of protocol to define how to automate control over the device.
    • The second sentence: we will define the protocol, including what parameters the device will understand, and hook this baby up to the GPS.
    • The third sentence: we will store a lot of this data in advance in a private network that might have limited access to the general Internet, and make that information availible to the device. Additionally, we will be able to update this information.

    So far, it’s not looking too good for this patent. If I have time later tonight, I’ll try to read it and post a longer critique of it.

    To call this patent a joke, so far, would be to imply that it has a good quality to its credit.

  • http://www.codemonkeyramblings.com MikeT

    Also, so we’re clear Noel, a protocol does not determine how something functions behind the scenes. Yes, there is going to be commonality, but it is entirely possible for two products to implement a protocol in very different ways behind the scenes. All a protocol does is determine a structure on how things communicate.

  • Noel Le

    The patent claim states that it covers a “method,” so Tim was pretty much critiquing a patent w probably no implementation. Look at the existing art, which simply states “PDA” and other common technologies. I have disagreement w/ its scope, as the patent states that it may cover items not drawn out in the claim, and may be appended. Everyone hates bad patents, this might be one. Tim what kind of research did your friend do to get on the patent?

  • http://www.codemonkeyramblings.com MikeT

    Noel, I don’t have time to read the patent indepth, but here’s a simple breakdown of the submitter’s abstract for you from an implementation perspective:

    The present invention includes as one embodiment a method for automatically controlling access to a mobile computing device with pertinent data. The method includes predefining access parameters of the mobile computing device, determining an actual location of the mobile computing device and using the actual location of the mobile computing device to automatically control access to the mobile computing device based on the predefined access parameters. Also, the method includes storing the predefined access parameters in a private Internet networked location, accessing and updating the predefined access parameters and sending the updated access parameters to the mobile computing device.

    <ul>
    <li>The first sentence: we will use some sort of protocol to define how to automate control over the device.</li>
    <li>The second sentence: we will define the protocol, including what parameters the device will understand, and hook this baby up to the GPS.</li>
    <li>The third sentence: we will store a lot of this data in advance in a private network that might have limited access to the general Internet, and make that information availible to the device. Additionally, we will be able to update this information.</li>
    </ul>

    So far, it’s not looking too good for this patent. If I have time later tonight, I’ll try to read it and post a longer critique of it.

    To call this patent a joke, so far, would be to imply that it has a good quality to its credit.

  • http://www.codemonkeyramblings.com MikeT

    Also, so we’re clear Noel, a protocol does not determine how something functions behind the scenes. Yes, there is going to be commonality, but it is entirely possible for two products to implement a protocol in very different ways behind the scenes. All a protocol does is determine a structure on how things communicate.

  • Noel Le

    The patent claim states that it covers a “method,” so Tim was pretty much critiquing a patent w probably no implementation. Look at the existing art, which simply states “PDA” and other common technologies. I have disagreement w/ its scope, as the patent states that it may cover items not drawn out in the claim, and may be appended. Everyone hates bad patents, this might be one. Tim what kind of research did your friend do to get on the patent?

  • http://psephologist.blogspot.com/ Rob LeGrand

    “The patent holder’s view on patents isn’t relevant as he’s no longer involved in either the licensing, R&D or product development work surrounding it.”

    I agree.

    “Tim what kind of research did your friend do to get on the patent?”

    Very little.  At IBM we were encouraged to patent virtually any idea.  I and two other guys in the network security department would go to lunch and trade ideas, then write up a few of the ones that seemed compelling, then see how far they got in the patent process.  Our write-ups were then rewritten by IBM lawyers to render them unreadable—I mean, more precise.  Of the four that made it to the filing stage, three (including the two that eventually became patents) were rather similar, having something to do with GPS and authentication.  (The fourth filing was, I thought, the most interesting, maybe because it was the one I had the most hand in, but I don’t have the details handy.)  As far as I understand it, IBM’s patent-everything-we-can strategy was more defensive than offensive.  I should also say that I mean IBM no ill will by this criticism; my experiences there were mostly positive.

  • http://psephologist.blogspot.com/ Rob LeGrand

    “The patent holder’s view on patents isn’t relevant as he’s no longer involved in either the licensing, R&D; or product development work surrounding it.”

    I agree.

    “Tim what kind of research did your friend do to get on the patent?”

    Very little.  At IBM we were encouraged to patent virtually any idea.  I and two other guys in the network security department would go to lunch and trade ideas, then write up a few of the ones that seemed compelling, then see how far they got in the patent process.  Our write-ups were then rewritten by IBM lawyers to render them unreadable—I mean, more precise.  Of the four that made it to the filing stage, three (including the two that eventually became patents) were rather similar, having something to do with GPS and authentication.  (The fourth filing was, I thought, the most interesting, maybe because it was the one I had the most hand in, but I don’t have the details handy.)  As far as I understand it, IBM’s patent-everything-we-can strategy was more defensive than offensive.  I should also say that I mean IBM no ill will by this criticism; my experiences there were mostly positive.

  • Noel Le

    Very interesting. So, is IBM stock a buy or sell? What do you make of IBM making over $2B/year in patent royalties? And are they merely disseminating innovation across the industry, squeezing rent out other companies or immersing themselves so deep in the patent landscape it would take every patent from TX and CA to make them blink? Oh and how much of its patent related technologies does IBM plan on mixing with its open source offerings?

  • Noel Le

    Very interesting. So, is IBM stock a buy or sell? What do you make of IBM making over $2B/year in patent royalties? And are they merely disseminating innovation across the industry, squeezing rent out other companies or immersing themselves so deep in the patent landscape it would take every patent from TX and CA to make them blink? Oh and how much of its patent related technologies does IBM plan on mixing with its open source offerings?

  • http://psephologist.blogspot.com/ Rob LeGrand

    It’s been five years now since I worked at IBM, so I don’t have any insider information.  I personally wouldn’t buy IBM stock right now, but then I never buy shares of individual companies.  As for their patent strategy, you may know more than I do—I was probably given the company line while I was there—but I remember getting the strong impression that their concerns were more defensive than offensive.  I didn’t think they were patenting everything they could just to sit back and collect royalties, but maybe that was the plan all along . . .

  • http://psephologist.blogspot.com/ Rob LeGrand

    It’s been five years now since I worked at IBM, so I don’t have any insider information.  I personally wouldn’t buy IBM stock right now, but then I never buy shares of individual companies.  As for their patent strategy, you may know more than I do—I was probably given the company line while I was there—but I remember getting the strong impression that their concerns were more defensive than offensive.  I didn’t think they were patenting everything they could just to sit back and collect royalties, but maybe that was the plan all along . . .

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