Software Patent of the Week: IBM, Patent Troll

by on October 27, 2006 · 18 comments

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. But this week, Luis Villa has done most of my work for me:

IBM has generally been very good about supporting open source, and as steven says, they’ve been very up front about their motivations- they are doing it because they want to make money, and they think open source and open standards help them make money.

This consistency has extended to their opinions on patents- they have made it clear that they think the system is broken, but they have also made it clear that they think patents are a perfectly legitimate business tool, and that they want to fix the system so that they can continue to make money on patents…

So it shouldn’t be a surprise to anyone that IBM are using patents to go after Amazon. What surprised me, after skimming the patents, is that the patents they are using to go after Amazon are so broad. With the exception of one (which is so opaque I can’t figure out what exactly it is patenting) a cursory reading suggests that these are exactly the kinds of broad, obvious patents that everyone (even IBM) at least says on the surface that they hate. Maybe by demonstrating that they have what Tim Bray calls ‘the Internet Tollbooth’ they think they can precipitate real patent reform, but that seems unlikely; more likely they just want a cut of Amazon’s pile. Shame, really, but it shouldn’t be a surprise.

Companies have a fiduciary duty to their shareholders to maximize their profits, so it shouldn’t surprise us when companies do legal but shady things that enhance their bottom lines. However, it should make us ask why the patent system is giving companies the incentive to engage in such rent-seeking. It does nothing to promote “the progress of science and the useful arts” to give companies monopolies on ideas like “System for ordering items using an electronic catalogue” that are so obvious that it’s inevitable that dozens of companies would independently “invent” them.

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

    I’d wait to see how the courts interpret the patents before claiming IBM is abusing the patent system. Or perhaps you think you’ve already done the work of the legal teams from IBM, Amazon, the judge and the USPTO.

    By the way, just like the case with monopoly, freedom and free markets, your apparent use of the term patent troll is so broad as to not have any meaning. So tell us Tim, how do you define patent troll.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Patent Troll: 1. (Especially post-industrialisation ~1950) Someone who owns one or more patents (whether through registration or purchase) and hopes to prosecute violators; 2. Anyone who owns a software or business method patent.

  • http://tieguy.org/ Luis Villa

    Tim: thanks for the link ;) To be completely fair to IBM, I think it is useful to link to hrm… well, someone, who I now can’t find (I thought it was Mike Dolan) who pointed out that the dates on these patents are quite old, which makes them a little less obvious. This raises an interesting question for me- if 50% of the people with a web browser would have found these obvious, but at the time they were filed, only 25 people had a web browser, is it still obvious? I’m really not sure, and I think it bears some contemplation, more than either of us have given in our primary posts.

    [Tangentially, if anyone wants to write a greasemonkey plugin that just removes Noel's comments, I'd be perfectly OK with that.]

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

    I dunno, if you stopped a random CS grad student in 1990 and asked him to come up with a design for a “System for ordering items using an electronic catalogue,” I bet he’d come up with something roughly like that patent. I mean, the implementation details wouldn’t be exactly the same, but then I doubt Amazon’s system uses an IBM 3090 either. What that patent appears to cover is the whole concept of an online catalog, and surely that concept was relatively obvious in 1990.

    True, the technologies required to make it practical were a few years away yet, but then the patent doesn’t describe any of those enabling technologies. For example, we’re told that “Communications between the computer systems are best accomplished using industry standards such as American National Standard Institute (ANSI) X24.” It’s surely obvious that implementing an online catalog is best done using industry-standard networking protocols, is it not?

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

    I’d wait to see how the courts interpret the patents before claiming IBM is abusing the patent system. Or perhaps you think you’ve already done the work of the legal teams from IBM, Amazon, the judge and the USPTO.

    By the way, just like the case with monopoly, freedom and free markets, your apparent use of the term patent troll is so broad as to not have any meaning. So tell us Tim, how do you define patent troll.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Patent Troll: 1. (Especially post-industrialisation ~1950) Someone who owns one or more patents (whether through registration or purchase) and hopes to prosecute violators; 2. Anyone who owns a software or business method patent.

  • http://tieguy.org/ Luis Villa

    Tim: thanks for the link ;) To be completely fair to IBM, I think it is useful to link to hrm… well, someone, who I now can’t find (I thought it was Mike Dolan) who pointed out that the dates on these patents are quite old, which makes them a little less obvious. This raises an interesting question for me- if 50% of the people with a web browser would have found these obvious, but at the time they were filed, only 25 people had a web browser, is it still obvious? I’m really not sure, and I think it bears some contemplation, more than either of us have given in our primary posts.

    [Tangentially, if anyone wants to write a greasemonkey plugin that just removes Noel's comments, I'd be perfectly OK with that.]

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

    I dunno, if you stopped a random CS grad student in 1990 and asked him to come up with a design for a “System for ordering items using an electronic catalogue,” I bet he’d come up with something roughly like that patent. I mean, the implementation details wouldn’t be exactly the same, but then I doubt Amazon’s system uses an IBM 3090 either. What that patent appears to cover is the whole concept of an online catalog, and surely that concept was relatively obvious in 1990.

    True, the technologies required to make it practical were a few years away yet, but then the patent doesn’t describe any of those enabling technologies. For example, we’re told that “Communications between the computer systems are best accomplished using industry standards such as American National Standard Institute (ANSI) X24.” It’s surely obvious that implementing an online catalog is best done using industry-standard networking protocols, is it not?

  • http://tieguy.org/ Luis Villa

    I think the question is less the obviousness of the method (which I agree is obvious given the goal), and probably more the obviousness of the goal- would it have been obvious that ordering items over an electronic network was at all interesting in 1990? I mean, that’s what phones were for, right? Why would you do that over a slow crappy modem through a text-heavy UI?

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

    Crosbie, that would fall inline with how Tim will use the term patent trolls… and just like how he uses monopoly and hierarchical beauracracies, there’s no meaning in what he says.

  • http://tieguy.org/ Luis Villa

    I think the question is less the obviousness of the method (which I agree is obvious given the goal), and probably more the obviousness of the goal- would it have been obvious that ordering items over an electronic network was at all interesting in 1990? I mean, that’s what phones were for, right? Why would you do that over a slow crappy modem through a text-heavy UI?

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

    Crosbie, that would fall inline with how Tim will use the term patent trolls… and just like how he uses monopoly and hierarchical beauracracies, there’s no meaning in what he says.

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

    Luis, this might be me not understanding the patent system, but I don’t see what kind of sense it makes to have a patent system that lets you get a monopoly on a broad category of inventions like “online catalogs.” The goal is theoretically to spur R&D, but it doesn’t require R&D to say “hey, maybe people will buy things over the Internet some day.” The R&D is required to come up with a particular implementation. Yet you can apparently get a patent for the broad category without necessarily even having a working product in that category, to say nothing of a particularly clever or original implementation.

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

    Luis, this might be me not understanding the patent system, but I don’t see what kind of sense it makes to have a patent system that lets you get a monopoly on a broad category of inventions like “online catalogs.” The goal is theoretically to spur R&D;, but it doesn’t require R&D; to say “hey, maybe people will buy things over the Internet some day.” The R&D; is required to come up with a particular implementation. Yet you can apparently get a patent for the broad category without necessarily even having a working product in that category, to say nothing of a particularly clever or original implementation.

  • Richard Todd

    “Would it have been obvious that ordering items over an electronic network was at all interesting in 1990?” Dunno about obvious, but some of us were certainly doing it back then. Back around 1990, CD Connection set up their store on a dial-up BBS (some sort of mutated Fido setup, IIRC) where you could download catalogs, do online searches of the catalog, and place orders. They were in one of the “PC Pursuit” outdial cities, so anyone with a PC Pursuit account could dial into them through Sprint’s X.25 network without running up long-distance charges. Also about that time, Ranjit Padmanabhan was doing a brisk business selling mail-order CDs out of his house and accepting queries and sending catalogs via email (though his setup wasn’t automated like CD Connection, and you had to snail-mail him the checks separately, so it’s not as completely net-based an operation.) Not sure when CDNow did their first CD sales over WWW, but I think it was a few years later; it was before SSL was standard, as I remember they had you send in your credit-card number via separate PGP-encrypted email.

  • Richard Todd

    “Would it have been obvious that ordering items over an electronic network was at all interesting in 1990?” Dunno about obvious, but some of us were certainly doing it back then. Back around 1990, CD Connection set up their store on a dial-up BBS (some sort of mutated Fido setup, IIRC) where you could download catalogs, do online searches of the catalog, and place orders. They were in one of the “PC Pursuit” outdial cities, so anyone with a PC Pursuit account could dial into them through Sprint’s X.25 network without running up long-distance charges. Also about that time, Ranjit Padmanabhan was doing a brisk business selling mail-order CDs out of his house and accepting queries and sending catalogs via email (though his setup wasn’t automated like CD Connection, and you had to snail-mail him the checks separately, so it’s not as completely net-based an operation.) Not sure when CDNow did their first CD sales over WWW, but I think it was a few years later; it was before SSL was standard, as I remember they had you send in your credit-card number via separate PGP-encrypted email.

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

    Tim, how do you tie one patent, or several patents, to an overall critique of the patent system and its relation to R&D. There are limitations in analyzing 1 patent per week, you have to be careful about over-generalizing. To make some of the claims you do, look at resources available at the National Bureau of Econ Research, or economic studies from the Bureau’s researchers.

    BTW, the “patent premium,” how much increased patenting spurs additional R&D investment, is lower in the software industry than in others (pharma, semiconductor, etc). Thats why some patent policy researchers, including me, like to see the novelty-obviousness standards raised and the scope of patents narrowed through more detailed claim construction. Theoretically, this should result in fewer patents, but ones of higher quality.

    The discussion here on how to treat a patent that turns out to be obvious due to natural technological progress and maturity is an interesting one. I’d say courts should consider the level of obviousness with respect to existing societal knowledge; unless the patent holder somehow contributed to that knowledge they shouldn’t be able to lay full claim to infringement. I have to think this through more, but such an “existing knowledge” standard is not quite the same as an independent invention proposal.

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

    Tim, how do you tie one patent, or several patents, to an overall critique of the patent system and its relation to R&D.; There are limitations in analyzing 1 patent per week, you have to be careful about over-generalizing. To make some of the claims you do, look at resources available at the National Bureau of Econ Research, or economic studies from the Bureau’s researchers.

    BTW, the “patent premium,” how much increased patenting spurs additional R&D; investment, is lower in the software industry than in others (pharma, semiconductor, etc). Thats why some patent policy researchers, including me, like to see the novelty-obviousness standards raised and the scope of patents narrowed through more detailed claim construction. Theoretically, this should result in fewer patents, but ones of higher quality.

    The discussion here on how to treat a patent that turns out to be obvious due to natural technological progress and maturity is an interesting one. I’d say courts should consider the level of obviousness with respect to existing societal knowledge; unless the patent holder somehow contributed to that knowledge they shouldn’t be able to lay full claim to infringement. I have to think this through more, but such an “existing knowledge” standard is not quite the same as an independent invention proposal.

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