Patents

I’ve been beating up on PFF a lot lately, so I think I ought to give credit where credit is due: this May amicus brief urging the Supreme Court to grant cert in KSR v. Teleflex in order to re-consider the patent obviousness issue, is excellent. They do a fantastic job of explaining the dangers of granting patents too easily. I found this passage particularly entertaining:

The defects of such a doctrine may well be illustrated by the notorious Patent 6,368,227, “Method of Swinging on a Swing,” obtained by a five-year old whose parent happened to be a patent lawyer. It is also called the “sideways swinging” patent, because that is what it covers–the idea that a swing can be made to move sideways as well as back and forth by pulling on the chains in a particular way.

The Patent Commissioner ordered a re-examination of the ‘227 patent on May 21, 2002,17 and ultimately PTO found sufficient prior art in patents granted in 1939, 1943, and 1969 to result in its invalidation. But the case ought never to have gotten so far; scarce patent-examiner hours and public resources had to be expended to officially recognize the obvious. The difficulty the office faced resulted from the fact that the Federal Circuit’s standard forbade the examiners to take notice of what, literally, any child would know. As a newspaper report on the matter said, “The patent office is searching for documented proof that children have always powered their swings by pulling on the chains. Then, and only then, will it kill the patent as quietly as possible.”

Had USPTO been unable to find written proof of something known to all, then under the Federal Circuit test the patent would have stood. “[D]eficiencies of the cited references cannot be remedied by the Board’s general conclu sions about what is ‘basic knowledge’or ‘common sense.'” “‘Common knowledge and common sense,’even if assumed to derive from the agency’s expertise, do not substitute for authority when the law requires authority.”

In the swing patent case, ultimately, the PTO reached the sensible result. But the Federal Circuit decisions present an obstacle to the office’s doing so in a significant number of cases. For example, in 1999, the Federal Circuit reversed the PTO’s rejection of a patent application for orange trash bags with jack-o-lantern faces. A prior art search had turned up instructions for a children’s craft project involving the drawing of pumpkin faces on large orange bags. But this was not sufficient, because the instructions referred to paper bags, not to trash bags.

All of the concerns they raise–that people don’t always publish obvious ideas, that spurious patents create a “landmine” for genuine innovators, that mere combinations of well-known elements don’t constitute a new invention–apply with a vengeance to software. It’s possible (I’ll have to do some more reading and thinking before I make up my mind) that revising the obviousness standard as they propose would solve the problems with software patents. Regardless, PFF’s proposals for revising the obviousness standard deserve a serious look by Congresscritters as they ponder the grim possibility of a future without Blackberries.

Update: I’m also curious what DeLong had in mind when he mentioned software patents in the post I criticized last week. Having read his brief, it’s clear he does understand the dangers of granting patents too freely, which makes me wonder why he singled out the “no software patents” view for criticism. The criticisms of software patents that I’ve seen, at least, rest heavily on the contention that software “inventions” are all almost always obvious to a skilled practitioner of software development. I imagine he would at least agree with that critique, if not with the proposed remedy.

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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.

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I linked to this classic article on the problems of software patents on Saturday. I think this passage is worth highlighting:

Even the giants cannot protect themselves with cross-licensing from companies whose only business is to obtain exclusive rights to patents and then threaten to sue. For example, consider the New York-based Refac Technology Development Corporation, representing the owner of the “natural order recalc” patent. Contrary to its name, Refac does not develop anything except lawsuits–it has no business reason to join a cross-licensing compact. Cadtrak, the owner of the exclusive-or patent, is also a litigation company.

Refac is demanding five percent of sales of all major spread-sheet programs. If a future program infringes on twenty such patents–and this is not unlikely, given the complexity of computer programs and the broad applicability of many patents–the combined royalties could exceed 100% of the sales price. (In practice, just a few patents can make a program unprofitable.)

Sound familiar? When this was written, in 1991, Research in Motion was an obscure developer of wireless networking components, and the first BlackBerries were a decade away. NTP hadn’t even been founded yet. Yet this passage perfectly describes the RIM-NTP controversy. NTP doesn’t do anything useful, it’s strictly a lawsuit shop, or “patent trolling” firm. As Fortune describes it:

NTP has this remarkable power because it is nearing victory in its four-year-old patent litigation with Research in Motion (Research), the maker of the BlackBerry. RIM faces the real likelihood of a court-ordered BlackBerry blackout (government devices would be exempted) unless it agrees to pay essentially whatever sum NTP names, which some analysts think will approach ten figures.

However the endgame plays out, it vividly illustrates a recurring lightning-rod issue in patent debates–one that pits the information technology industry, which favors reform, against many others, such as the pharmaceutical industry, which don’t. Should plaintiffs like NTP–which does not market a competing product, never has, and never will–be entitled to an automatic injunction shutting down a productive infringer such as RIM?

NTP was founded in 1991 by the late inventor Thomas Campana and his patent attorney, Donald Stout, of Arlington, Va. It has no employees and makes no products. Its main assets, Campana’s patents, have spent most of the past decade in Stout’s file drawer. But in 2002 a federal jury found that RIM had infringed five NTP patents that relate to integrating e-mail systems with wireless networks. An appellate court largely agreed in August 2005, and in late October the U.S. Supreme Court declined to issue a stay while it ponders whether to hear the case.

I think it’s impossible to over-emphasize the importance of this point: NTP is not a BlackBerry competitor marketing a competing product. Its only “product” is lawsuits against companies that have the misfortune of developing products that happen to resemble those described in NTP’s patents. How exactly does this kind of extortion “promote the progress of science and the useful arts?”

The Fortune article, by the way, is worth reading in full.

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I haven’t had time to read enough to know exactly what technology Research in Motion and NTP are fighting about, but I think it’s shocking to see accounts like this of the dispute:

The patent office has issued preliminary rejections of all five NTP patents that a jury in 2002 decided RIM had infringed upon with the BlackBerry device and service.

NTP has downplayed those rulings as largely procedural, while RIM has called the rejections proof that the technology behind its popular BlackBerry handhelds and e-mail service is not stolen.

After 3 years of intense litigation, it still isn’t clear whether RIM’s technology is “stolen” or not. That should send chills down the spine of anyone who values private property and the rule of law. Perhaps the most basic characteristic of any good system of property rights is predictability. An economic actor needs to know where the property lines–physical or intellectual–are so that he can avoid crossing them without permission. Even copyright, which certainly has its share of fuzzy lines, at least has a reliable method of staying on the safe side–when in doubt, don’t make unauthorized copies. That’s not true of software patents, which can cover anything that some patent office bureaucrats decides to declare an “invention.”

So what exactly was RIM supposed to do when it first deployed this technology? Patent searches are expensive, and even with unlimited resources it’s unlikely that you could ever find every patent that could potentially be construed as infringing. Even if you could find every such patent, some patents are so vague that it might not be possible to re-design your product to avoid infringing them.

Is this really how we want to run our software industry? Do we really want to require lawyers to inspect every line of computer code to make sure a programmer didn’t accidentally “invent” something that some other company previously patented?

Software isn’t like most R&D. A large software product consists of hundreds and hundreds of components that perform various tasks. Many of these components could be considered “inventions” by the patent office. Yet it’s unlikely that any of these “inventions” are unique–other programmers, dealing with similar challenges on other projects, are likely to independently “invent” the same techniques. Indeed, programmers consider such “inventions” to be so commonplace that they don’t bother to write them down. That’s why it’s often difficult to find prior art for things that are painfully obvious to any competent programmer.

In effect, patents create a legal minefield for software developers simply trying to go about their business. Because the patent office gives out patents so promiscuously, the developer has no way of predicting when code he writes might run afoul of a somebody’s patent. That means that even if he developed every line of code himself, without looking at anyone else’s code, he still can’t be sure that somebody won’t come along and sue him for patent infringement.

If there’s a silver lining to this fiasco, it’s that all the Hill staffers, judges, and patent office bureaucrats who created the current mess will have the opportunity to think long and hard about software patent reform while they’re waiting for their BlackBerries to start working again. Geeks have been bitching about the problems with the software patent regime for more than a decade, but if our complaints won’t get their attention, maybe a judicially-mandated BlackBerry blackout will.

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I really don’t care very much about the particulars of the patent battle between RIM and NTP.

But when I read yesterday that a US District Judge invalidated the $450 million settlement reached earlier this year, I was elated at the possibility, however unlikely, that an injunction might shutdown the Crackberry of every jackass lawyer in DC.

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