Essays Software Patents

Software Patents


Last updated February 17, 2018

In the United States software is patentable, and recent decisions from the Federal Circuit are providing new hope that hasn’t existed in the industry for years.

We typically refer to such inventions as computer implemented processes, but in the end it is software that is being protected.  Software can be protected in the U.S. if it is unique and tied to a machine. Most importantly, to be patented software really needs to offer some kind of identifiable improvement. Merely doing something that is known on a computer is extremely unlikely to be patentable.

The “unique” requirement is a short-hand way of saying it must be novel and non-obvious, which are core patentability requirements for any invention.  The requirement that the process be tied to a particular machine is not really much of a limitation if you really have a computerized process, but it is there to make sure that whatever protection you do ultimately obtain will not extend to so-called “pure business methods.”  In other words, you cannot patent a process done in your head, but if that process leverages a tangible machine, such as a computer, now you have something that is patent eligible and which will receive a patent if it is described properly and is unique.

When dealing with software patents the process we follow is rather straight forward; we view the innovation as a system that provides a desired set of functionalities.  We work with clients to consider the project with an engineering mind set, which requires understanding of the overall design, but also requires more detailed understanding. We first want to start out with the broad vision and then drill down to the specifics, which allows us to protect the broadest aspects of the invention as well as the specific features and implementations. This leads to the strongest, broadest software patent that can be obtained.

Which functionalities are unique and why? How does the rules engine implementing those core functionalities handle and manipulate information? Because human actors will interface with the system we can anticipate mistakes and errors, so what compensation is integrated to address this inevitable human element? What problems are solved by your solution and how is this more advantageous than any other known solutions? Uniqueness can and will reside in many places when dealing with software and computer process related inventions. We first work with you to uncover that which is unique and most likely patentable, and then we set about working to get it protected — patented — so you obtain a valuable business asset — a software patent that provides a meaningful foundation to build on.

I always recommend that inventors seeking software patents start with a patent search. Typically there is always something that can be patented, it is just a matter of finding out what is unique and how to describe it to accentuate the uniqueness of the invention. Ultimately, the question is usually whether the patent claims that can be obtained will be broad enough to warrant the time, money and expense associated with obtaining a patent.

When I do a patent search for computer related technologies and software inventions are comprehensive and employ a multi-phase search. This allows us to learn more about the invention little by little in context of the prior art we locate. We work together with the inventors in a cooperative approach. By the time the search process has concluded the inventor will have a 5-7 page single spaced detailed assessment, a complete patent search report detailing everything that was located and we will thoroughly understand the invention and likelihood of obtaining protection. This approach allows for a much more detailed patent application. For more information about our patent search process please see Patent Search FAQs.

We work to envision the system from three distinct views, all of which are described in the software patent application. Specifically we approach the software patent application: (1) from the view of the end user; (2) from a systems/architecture view; and (3) from the viewpoint of the computer.  To get a sense for this, and why it is important, I strongly recommend reading these few articles:

I always recommend my new clients read at least these articles to get an idea about the project, what information I will need and how we approach the overall task.  The more you understand about why we need what we ask for the better the results.  It will make you a better inventor because you will be more in tune with what information is required and it will help you to identify a great many things that are likely capable of being protected that you never considered as patentable.

If you need assistance with a software patent, Internet technology or computer device send me an e-mail.  My firm and I have quite a bit of experience with software patents and related technologies, and I even have my own software patent application pending on a computer implemented process, so my interest in this area is both as a legal representative and an inventor.

From the IPWatchdog.com Blog

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Eliminate Software Patents

David A. Wheeler

2008-12-01 (revised 2011-08-02)

Historically, the U.S. court system understood that software could not be patented. Unfortunately, lower courts have radically re-interpreted the laws (through decisions such as State Street), in ways that have greatly harmed software developers and software users.

We need to abolish software patents, because there is a vast amount of evidence that software patents harm software developers and software users (see below). Nearly everyone uses software, so software patents have been harmful to everyone. For example, since any significantly-sized software must use millions of "inventions", software patents create a "patent thicket" where no one can legally develop software. The purpose of patents is to encourage and share innovation, but there's no evidence that patents are needed to encourage software innovation, and they are useless for sharing innovation. Indeed, patents actively prevent innovation in software.

As an Ars Technica article explains, "The patent system has traditionally excluded coverage of innate scientific truths and mathematical expressions. There is no basis in law for assuming that software methods are patentable, but some dubious legal rulings issued by the Federal Circuit after its inception in the 1980s have created legal precedents for software patentability... End Software Patents (ESP)'s executive director, tech policy expert Ben Klemens, [stated that] 'Software patents endanger both software developers and businesses, ironically stifling the very innovation that the U.S. patent system was intended to foster.'"

When the U.S. Federal Trade Commission (FTC) examined software patents, they found that "Many panelists and participants expressed the view that software and Internet patents are impeding innovation. They stated that such patents are impairing follow-on incentives, increasing entry barriers, creating uncertainty that harms incentives to invest in innovation, and producing patent thickets." [Full FTC text] Software development proceeded quite well when patents weren't permitted, so there's absolutely no evidence that government-enforced monopolies are necessary. Indeed, Bessen and Maskin demonstrated that as U.S. software patentability went up, software innovation went down (in contrast with the rest of industry). Typical webstores would become illegal if already-granted software patents are upheld, so the problem is real - not theoretical. U.S. Supreme Court Justice Breyer has pointedly said "I take it that we are operating on an assumption that software is patentable? We have never held that in this Court, have we?" — and later a government lawyer agreed that software by itself is not (Microsoft v. AT&T, 2007).

This is a long, hard fight between software innovators and patent lawyers. Software innovators are interested in innovating, but the patent system actively prevents this in software. In contrast, most patent lawyers make money by patenting, and thus are interested in expanding the use of patents, even when it's bad for the industry and bad for the country. Patent lawyers claim that patents encourage innovation, but this has never been proved; all evidence is that it does not help innovation, and a lot of evidence points to direct damage.

Articles on why software patents should be abolished

You don't need to take my word for it; many people have explained some of the many problems that software patents create, demonstrating that software patents create more problems than they solve. Here are a few URLs that explain why software patents are a terrible idea:

  • "The Rise of the Information Processing Patent" by Ben Klemens (published in the Journal of Science and Technology Law) is especially good; it "recommends a return to the distinction that inventions consisting of information processing plus a trivial physical step be barred from patentability.":
    • Section I provides a legal perspective. He also explains what computer scientists understand but most lawyers don't: "once one type of information processing is patentable, all types are patentable. Because there are various types of information processing that many think should not be patentable, the patentability of any one type of pure information processing creates myriad problems."
    • Section II provides an economic perspective; and shows why "allowing software and business methods to be patentable creates transaction costs that easily dwarf the benefits that such patent protection may provide. The key concept behind the discussion is that these pseudo-industries are massively decentralized, and patents do not efficiently promote progress in a decentralized industry... the waste and economic loss associated... becomes inevitable."
    • He makes it clear that "Fixing the obviousness problem would do nothing, however, to alleviate the problems..."; instead, "many of the problems with patents... can be solved by reinstating the distinction from Diehr and its predecessors that indicate a device is patentable only if it is based on steps that are simultaneously novel and non-trivially physical...".
  • End Software Patents' 2008 report estimates that software patent lawsuits cost the industry $11.26 billion annually.
  • Some of the amicus briefs for Bilski help explain the issues well. End Software Patents' Bilski brief for the Federal Circuit is pretty good, as is the FSF Bilski brief for the Supreme Court. Other useful briefs include Red Hat's Bilski brief to the Federal Circuit, Red Hat's later Bilski brief to the U.S. Supreme Court, and the EFF's Bilski brief. The ACLU brief raises a Consitutional issue for freedom of speech: "If the government had the authority to grant exclusive rights to an idea, the fundamental purpose of the First Amendment - to protect an individual's right to thought and expression - would be rendered meaningless." (Software is also speech, so the same problems apply to software patents.)
  • "Patent Failure" (James Bessen and Michael J. Meurer)
  • "The Private and Social Costs of Patent Trolls" by Jim Bessen, Mike Meurer and Jennifer Ford of Boston University examined to see if patent trolls helped or hurt the economy. By examining the evidence they found that patent trolls hurt the economy far more than they help. In particular, their lawsuits cost about half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. The majority (62%) were software patent lawsuits. I think this is yet more evidence that software patents — which should never have been allowed — are costing a fortune in lost opportunities and lost jobs. Groklaw discussed the paper.
  • A Generation of Software Patents (James E. Bessen, June 21, 2011)
  • "A Patent Lie" (Timothy B. Lee, NY Times 2007-06-09) (NY Times) briefly explains why software patents should be prohibited.
  • "The Software Patent Experiment" (James Bessen and Robert M. Hunt) - James Bessen (Research on Innovation and Boston University) and Robert M. Hunt (Federal Reserve Bank of Philadelphia) provide a sobering less-technical summary of important research they did on software patents. They found that in the 1990s, the firms that were increasingly patenting software were the ones that were decreasing their research and development -- that is, patents are replacing research and development, not encouraging it.
  • "A Patent is Worth Having, Right? Well, Maybe Not" (Michael Fitzgerald, NY Times, 2007-07-15) summarizes research by James Bessen and Michael J. Meurer.
  • "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" (book by James Bessen and Michael J. Meurer, Princeton University Press, March 2008) provides research results; they analyzed a massive amount of data and found that patents don't work except in biotech... and that they especially don't work in the information technology industry.
  • "Against Intellectual Monopoly" by Michele Boldrin and David K. Levine goes futher than Bessen and Meurer; they make a case for abolishing patents and copyrights entirely. You can buy the book or read it online. Their against monopoly blog is interesting, too. They go further than I do; I agree that copyright law has many serious problems, but I think it can be reformed without being eliminated, and I think patents have at least some justification for their traditional uses. Still, they have extensive evidence about the failures of software patents. You can also see the 2013 journal article by Michele Boldrin and and David K. Levine "The Case against Patents" in the Journal of Economic Perspectives, 27(1): 3-22: "The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative..."
  • "Patent terrorists ruin an industry"
  • "Software Patents" page (Ciaran O'Riordan)
  • "What's Wrong with Software Patents?" (Pieter Hintjens)
  • "The Problem of Software Patents in Standards" (Bruce Perens)
  • Analysis on Balance - Standardisation and Patents (Georg Greve, President, FSFE) (also on Groklaw)
  • Ed Burnette's essay on software patents notes that software patents are one of the worst things to happen to the software industry; the "only solution is to ban software patents altogether, worldwide. Copyright law provides plenty of protection for software, just as it does for paintings, poetry, and books."
  • Fighting Software Patents (Stallman)
  • Ctrl-Z: a return to the Supreme Court's software patent ban? (Ars Technica)
  • My page on software innovation shows that patents have not encouraged innovation in software (though that wasn't its original purpose). .
  • "Patent Gridlock Suppresses Innovation" (Wall St. Journal, 2008-07-14)
  • Patents Being Abused To Put Your Life In Danger
  • Patent system needs overhaul, say researchers - "Markets are much better than patents in stimulating intellectual curiosity and discovery, according to Swiss-led research. An international team, led by Professor Peter Bossaerts from Lausanne's Federal Institute of Technology, carried out experiments to quantify the ways patent systems and market forces might influence someone to invent and solve intellectual problems. Their findings were published in the latest issue of the journal Science."
  • Patent-Litigation Weekly: The Photo-Sharing Files gives some of the heart-breaking tales of small entrepreneurs being extorted by holders of patents that should never have been granted. Here we have a patent on sharing pictures on the web — an obvious application if there ever was one, since the whole point of the web is to exchange and share information.
  • "Ignoring Patents" by Mark A. Lemley (July 3, 2007) explains that "both researchers and companies [in IT] simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT. Ignoring patents, then, may be a 'workaround' that allows the innovation system to function in the face of overbroad patent protection." He tries to develop a workaround, but instead of creating a workaround, we should actually fix the problem by eliminating software patents.
  • Stephen O'grady lists many good reasons to oppose software patents, but focuses on reasons why the software patents cannot ever work properly. As he says, "it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software".
  • Red Hat's 2009 press statement notes Red Hat's filing with the European Patent Office (EPO), recommending that Europe continue to forbid software patents. As noted by Glyn Moody, Red Hat's filing regarding software patents and their problems is unusually clear.
  • "Letter to an Anonymous Patent Attorney" by N. Stephan Kinsella is a letter by a registered patent attorney who argues that patents should be abandoned entirely. He argues that many attorneys mindlessly accept that the current system is good and have a good reason to not think about it closely, since it pays their mortgages. (Upton Sinclair noted this problem long ago: "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"). This is an important issue to understand - asking patent lawyers if software patents are a good idea is a lot like asking foxes if henhouses should continue to have unlocked doors. He often contributes to Against Monopoly.
  • This Groklaw article suggests Microsoft was trying to peddle patents to patent trolls specifically to stifle competition, and the article "Microsoft and Patent Trolls" from Red Hat. says that Microsoft even used marketing materials that "highlighted offensive uses of the patents against open source software, including a number of the most popular open source packages". OIN bought them instead, but the whole purpose of OIN is silly: To enable innovation in spite of the how the law is currently interpreted. OIN is important, given today's bad law; it tries to enable some innovation in spite of the stifling effect of software patent monopolies. But we need to fix the current interpretations of the law, rendering them unnecessary.
  • Donald Knuth is one of the world's leading experts on algorithms and software development (he's a recipient of the Turing Award, creator of the TeX computer typesetting system, and author of The Art of Computer Programming aka the "Bible of computer programming"). He's a long-time opponent of patenting software; here are Knuth's 2009 and 1994 letters opposing the patenting of software. Knuth even has a few patents on hardware devices, but strongly believes that "the recent trend to patenting algorithms is of benefit only to a very small number of attorneys and inventors, while it is seriously harmful to the vast majority of people who want to do useful things with computers".
  • A lot of lawyers seem to think software is patentable because they think there is something fundamentally different about math and software. The funny thing is that there a mathematical proof that math and software are the same thing. When politicians and lawyers try to legislate something against facts, such trying to make pi a rational number or trying to make software different than math, the result is bad law. The Curry–Howard correspondence proves that there is a deep correspondance between math and programs.
  • "The Case against Literary (and Software) Patents" by Timothy B. Lee (Cato Institute, Issue #125, August 28, 2009) argues against software patents.
  • Math you can't use (Klemens) discusses some of the serious problems of patents in a larger context.
  • "Patent nonsense: An end to frivolous patents may finally be in sight" (The Economist) argues in February 2010 that business process and software patents should help innovation.
  • "Can You Patent a Cat and a Laser Pointer?: The Supreme Court takes on frivolous patents, and might end up eliminating protection for software" by Larry Downes, Slate's The Big Money, November 9, 2009.
  • New Zealand plans to eliminate software patents, after a select committee examined and recommended eliminating them.
  • The movie Patent Absurdity explores the case of software patents and the history of judicial activism that led to their rise, and the harm being done to software developers and the wider economy as a result.
  • Venture capitalist Brad Feld argues strongly against software patents, and sent out Patent Absurdity to a list of 200 people who he hoped might influence things. In his June 2010 letter he explained why innovators are opposed to software patents (while lawyers are generally for them). In particular, he notes that " The financial cost of defending yourself against a software patent claim are impossible to overcome ... Economic research demonstrates that software patents are acting as a drag on the US economy... Programmers – those skilled in the art of writing software, would be expected to benefit from, and support the patenting of software. They do not. They uniformly despise them as a limitation on their art... Venture capitalist like me, who work with new innovative start-ups can testify that software patents have a chilling effect on the market."
  • "An Overview of the 'Patent Trolls' Debate" by Brian T. Yeh, August 20, 2012 (Congressional Research Service) works hard to be even-handed, but it's hard ignore the incredible damage done by patent trolls to IT developers and users, and I think its effort to examine all sides shows that patent trolls are a serious problem. It notes that "Patent litigation is very expensive; the average suit in which $1 million to $25 million is at stake costs $1.6 million through discovery and $2.8 million through trial." It also finds that "the notice function has broken down in the IT sector. There are two aspects to notice failure: (1) claims have 'fuzzy boundaries' that cannot be reliably determined, much less known in advance, without litigation; (2) it is economically infeasible or irrational for defendants to search through existing patents to avoid infringement." Indeed, "Several provisions of section 112 are supposed to filter out abstract or ambiguous patents and ensure the world is on notice as to what each patent covers. The FTC and many observers indicate that these requirements have been less stringently applied and enforced in the IT industry than other sectors where notice failure is less of a problem."
  • In a speech on March 17, 2008, Ms Geraldine Fraser-Moleketi (Minister for Public Service and Administration, South Africa) said, "Whereas open standards and free software are intended to be inclusive and encourage fair competition, patents are exclusive and anti-competitive in their nature. Whereas there are some industries in which the temporary monopoly granted by a patent may be justified on the grounds of encouraging innovation, there is no reason to believe that society benefits from such monopolies being granted for computer programme 'inventions'.... such protection is not required to drive innovation in software... African software developers have enough barriers to entry as it is, without the introduction of artificial restrictions on what programs they are and aren't allowed to write... It will become increasingly important for FOSSFA to continue to lobby and mobilise to keep this intellectual space open. One cannot be in Dakar without being painfully aware of the tragic history of the slave trade. For three hundred years, the Maison des Esclaves (Slave House) on Goree Island, was a hub in the system of forceful transportation of Africans as slaves... That a crime against humanity of such monstrous proportions was justified by the need to uphold the property rights of slave owners and traders should certainly make us more than a little cautious about what should and should not be considered suitable for protection as property."
  • Patent trolls considered useful argues that patent trolls are useful in getting rid of software patents. "Patent trolls are just what the doctor ordered for this sick society of ours. They're the chemo to the patent cancer. The medicine is certainly nasty enough, but if it kills the disease before the patient, it's all good in the long run, right? ... Since they don't do anything useful themselves, they can't be countersued for patent infringement, nor can a MAD cross-licensing deal be negotiated as is usual between industry heavyweights. Thus I hope that patent trolls become even more plentiful than they already are, so much so that they can severely damage the ability of large corporations to do business. Given the premise, the latter might just have to cry 'uncle' and reverse their patent lobbying stances, otherwise facing the fate of the dinosaurs."
  • 7 Ways To Ruin A Technological Revolution is a Google Tech Talk that explains some ways to stifle innovation, including a discussion about software patents.
  • Even many who think that software patents are okay in principle admit that the current system is a failure, noting that the USPTO simply cannot properly review software patents. Tony Bradley's "HTC and Apple Put Patent Burden on ITC" (PC World) notes that in today's technology companies, "Patent suits are part of a systemic business strategy to stifle competition. ... many patents seem trivial or inappropriate, and the lines between technologies patented by one company and technologies patented by another are very fine — if they exist at all. At the root of the problem is the fact that the US Patent and Trademark Office (USPTO) lacks the resources — both in personnel and intellectual capacity — to comprehensively review the sheer volume of patents filed each year. The patent office relies on the filing party to have done sufficient due diligence regarding prior art and existing patents, and essentially rubber stamps patents and places the burden on the US legal system to sort it out after the fact. Ultimately, it seems like a misappropriation of an overburdened legal system for tech companies to utilize it as a forum for operational business strategy, or for the USPTO to exploit it to delegate its responsibility for patent oversight." This view is held by many, but I think grossly misplaced. The USPTO has worked hard to ramp up, and still simply cannot perform proper review, because we've changed the rules — historically it was well-understood that mathematics historically cannot be patented, and that software algorithms are mathematics; once the lower courts rewrote law, the USPTO has never found a way to do the job it's asked to do.
  • Similarly, another pro-patent attorney worries that The America Invents Act’s Patent Reform Might Strengthen Patent Trolls.
  • In a related note, Johanna Blakely's "Lessons from fashion's free culture" (TEDxUSC 2010) shows that fashion clothing is relatively free of copyright and patents, and in fact, there is a "culture of copying". She shows it is a false myth that "without ownership there is no incentive to innovate", because here is a whole industry where there is no effective ownership of ideas, and yet there is continuous creativity. Courts have ruled that apparel design is "too utilitarian" to qualify for copyright protection (as with hairdos, tattoo artists, jokes, food, rules of games, smells of perfumes). In particular, she showed that gross sales of "low IP" industries are far greater than the "high IP" industries.
  • In an embarrassing turn of events (for the pro-patent lobby), "Patenting by Entrepreneurs: The Berkeley Patent Survey (Part III of III)" found that in software companies, executives reported overall that patents provide less than "slight" incentive to invent, perform initial R & D, and commercialize products; they even admitted that generally accorded "with anecdotal reports from the software industry". Rather than simply admitting that the executives of these companies actually understood their business, they came up with various alternative hypothesis. To me, their alternative interpretations look like an attempt to avoid the obvious: Software patents do not encourage software innovation.
  • The article "Google likely to appeal, and win, Linux patent infringment verdict" pointedly notes that "software patents have become little more than a form of blackmail".
  • Patents and copyright takes another tack at explaining the nonsense of software patents, particularly the patents that claim that, although X isn't patentable, "X using a computer" is patentable (!).
  • "Microsoft’s Android Shakedown" (Timothy Lee, Forbes, July 7, 2011) isn't about getting rid of software patents, but it shows their problems. In particular, it notes that the current system causes a "transfer of wealth from young, growing, innovative companies like Google to mature, bureaucratic companies like Microsoft and IBM—precisely the opposite of the effect the patent system is supposed to have".
  • "When Patents Attack!" (PBS radio) by NPR reporter Laura Sydell and This American Life producer/Planet Money co-host Alex Blumberg explores patents and patent trolls in general. "We take you inside this war, and tell the fascinating story of how an idea enshrined in the US constitution to promote progress and innovation, is now being used to do the opposite". It particularly focuses on the role of patent troll Intellectual Ventures created by Nathan Mrhyvold.
  • "Patents against prosperity" (The Economist, Aug 1st 2011) discusses the many problems with patents, referring to "When Patents Attack" and Mark Lemley's "The Myth of the Sole Inventor". It concludes that, "At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation."
  • Many consider software patents, particularly when a patent troll sues, a modern form of danegeld (a tribute paid to the Viking raiders to save a land from being ravaged). Although many company leaders suggest paying off the trolls, the problem is that they keep coming back; as pointed out in Rudyard Kipling's "Dane-Geld", "if once you have paid him the Dane-geld / You never get rid of the Dane".
  • "Tech jobs vaporized as patent war goes nuclear" by Bill Snyder (InfoWorld, August 18, 2011), notes that "Google spent more than $400,000 per patent when it bought Motorola Mobility, wasting money in legal games that could have created jobs and products [instead]... existing jobs will be lost as the patent arms race goes nuclear and more and more companies are acquired for their patent portfolios and then discarded -- along with their employees."
  • The JMRI-Katzer legal dispute involved a patent dispute. Bob Jacobsen's story (per FLOSS Weekly) powerfully illustrates the problems of software patents. The JMRI project is a simple model railroading project, built by multiple people as a hobby, but it became extremely important because this court case led to US Court of Appeals for the Federal Circuit 2008-1001 Jacobsen vs. Katzer, which ruled emphatically that FLOSS licenses is legally enforceable ("the terms of the Artistic License are enforceable copyright conditions"). To oversimplify, Katzer watched an OSS project, filed software patents that described what they had created (using continuations to backdate them), and then sued the actual creators. This nonsense was perfectly legal!
  • "Why There Are Too Many Patents in America" by Judge Richard A. Posner, The Atlantic, July 12, 2012
  • There are also some artistic works that mock software patents, including Dilbert (2012-06-29), Dilbert (2012-06-30), The Software Patent Game (UserFriendly), Patenting Hope (Help Desk), and as does OpenBSD's page on the "CARP license". Mimi and Eunice note that, "without copyright law, art would not exist; without patent law, inventions would not exist; without real estate law, land would not exist; without marriage law, love would not exist!".
  • "Oracle v. Google Shows the Folly of U.S. Software Patent Law" by Julie Samuels (Wired, April 23, 2012) notes that "software often does not require the type of heavy investment that should result in a 20-year monopoly... Software patents are also notoriously vague and difficult to understand, making it impossible for small inventors to navigate the system without expensive legal help... software patents are nearly five times more likely to be the subject of litigation as other patents [and] have become part of the price of doing business in America... The patent system is supposed to benefit society and those who create, but instead the real winners in this game are the lawyers... In the fast-changing world of technology... it’s important that this ability to use and share is protected... rights holders [are] attempting to cut off important and popular downstream uses of their products, even when those uses may be legal (such as a fair use) or beneficial to society at large." The article concludes, "it’s time to rethink our policies on software patents... Patent litigation has become little more than a tax on innovation that drives companies from the U.S. market and discourages investment..."
  • Mark Cuban's Awesome Justification For Endowing A Chair To 'Eliminate Stupid Patents'

Sites/Organizations dedicated to abolishing software patents

Most software developers are opposed to software patents, since software patents endanger their livelihood. So unsurprisingly, there are whole sites and organizations dedicated to ending software patents. Some of these sites/organizations are:

There's no need to have both copyright and patent law control software, especially since there's lots of evidence that patents are impeding instead of aiding software innovation.

Various petitions have been raised proposing an end to software patents. Here's a Whitehouse.gov petition to direct the patent office to cease issuing software patents.

Stopgap measures

The only real solution for software patents is to eliminate them. All stopgap measures are only that - they reduce some of the harms that software patents create, without actually solving the problem.

Still, if a hurricane is coming in, it's usually better to lose one major city instead of three. Reducing the huge volume of bad patents that are absurd or prior art, and countering patent trolls who extort actual innovators without producing anything of value themselves, could help. They are completely inadequate to the task, so please don't think that these tweaks will be enough to make software patents acceptable.

There are some stopgap measures that exist today, and some stopgaps that could be adopted by countries unable to completely repair the laws or court precedences.

Stopgap measures: Existing Organizations

There are several organizations that try to reduce the damage of software patents, typically via software patent pools or by overturning a patent.

Software patent pools reduce the harm caused by software patents by buying and pooling patents so that everyone can use them, as long as they meet certain conditions (such as not suing the other pool users). As long as our silly system exists, I'm glad they exist too. Of course, their very existence indicts software patents - why must organizations be set up to counter government-created monopolies? Why not just eliminate the monopolies in the first place?

The Open Innovation Network (OIN) is primarily known for its software patent pool. More generally, Allied Security Trust is a member based patent holding company that helps protect members from patent infringement lawsuits by non-practicing entities.

Of course, patent pools cannot end the problem of patent trolls (aka "non-practicing entities"). Patent trolls make nothing of value, and solely exist to sue (or threaten to sue) the innovators who create and make actual products. This is one of the reasons patent trolls are particularly dangerous to innovation.

Another approach is to try to invalidate a patent. PubPat is an organization known for this. But this is expensive and time-consuming to do for each patent. It'd be better to eliminate entire classes of patents that cause problems for society; I believe all software patents and all business method patents are part of those classes.

Stopgap measures: Existing law/rules

As noted in Prosecution Laches May Bar Enforcement of Patent (May 20, 2002), the Federal Circuit ruled in "Symbol Technologies Inc. v. Lemelson Medical, Education & Research Foundation Limited Partnership" that the equitable doctrine of laches may permanently bar enforcement of patents that issued after a long delay in prosecuting the patents even though the applicant complied with all pertinent statutes and rules. "Laches is an equitable defense that arises from a delay in taking action. Laches defenses have been successful in cases in which a patent owner knows about an infringement and then delays many years before bringing suit. Laches typically bars the recovery of any past damages but allows for the recovery of damages arising after the filing of the lawsuit. A related doctrine is equitable estoppel, which arises from misleading conduct by the patent owner that leads the defendant reasonably to infer that the patent owner does not intend to enforce its patent against the defendant. A finding of equitable estoppel may preclude any recovery."

The U.S. Patent and Trademark Office (PTO) Board of Patent Appeals and Interferences (BPAI)'s precedential decision Appeal 2008-4366 decided in 2009 creates a precedent that can remove a tiny number of the most egregious offenders. In this case, someone tried to patent something that was, by anyone's definition, a mathematical algorithm and thus not patentable. It re-emphasizes the machine-and-transformation test per Bilski. It doesn't go far enough, but it's a start.

In theory, patents aren't supposed to be granted if they existed previously, or aren't novel. At the very least, existing practice + using the Internet should not be patentable; the idea of using the Internet is obvious. But this is theory; in practice, the USPTO routinely stifles innovation by granting patents on the previously-known and obvious.

The "written description" requirement, can (sometimes) invalidate some of the worst software patents. That's because many software patents simply describe abstract goals, instead of specific and novel methods for achieving them. Howard Levine discusses this (see video and text).

Of course, in some cases, companies can afford to go through the litigation to get software patents invalidated. Red Hat and Novell won a victory in 2010 against the patent trolls IP Innovation, L.L.C. (a subsidiary of Acacia Technologies) and Technology Licensing Corporation. In this case, people doing the innovation managed to win against the patent trolls (er, non-practicing entities), invalidating several patents, and thus managed to get their innovations out to people. But this costs millions of dollars per case.

"App developers withdraw from US as patent fears reach 'tipping point'" reports that "Growth in US software patent lawsuits means independent developers are turning away from it as a place to do business - as Indian software company sends warning to tech giants".

The Bilski ruling is being applied, and in some cases seems to be doing good. Robert Greene Sterne and Michelle K. Holoubek's "The Practical Side of §101 : One year post-Bilski: How the decision is being interpreted by the BPAI, District Courts, and Federal Circuit" as described in Bilski's growing up, and smacking down some bad software patents is striking down some especially egregious applications for software patents. But Bilski did not make a clear, simple statement that software was not patentable; as Mark Webbink notes, Bilski has simply "trimmed around the edges, but clever patent attorneys will still work around it".

Signals, including gestures, are not supposed to patented. U.S. law (Section 101 of Title 35 U.S.C.) defines what is patentable subject matter: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Gestures are not processes, machines, manufactures, or compositions of matter, so they are NEVER supposed to be patented. Gestures are basically signals, and signals are specifically NOT patentable. The Federal Circuit has ruled that signals are not statutory subject matter, because articles of manufacture (the only plausible category) do not include intangible, incorporeal, transitory entities (in In re Nuitjen, 500 F.3d 1346 (Fed. Cir. 2007)).

Amusingly, lawyers are starting to receive a taste of their own bad medicine. Absurd rulings such as State Street have opened patentability to nearly everything... including legal methods. Suddenly lawyers are finding that they can't give advice without checking on whether or not legal ideas are patented, and now that they're receiving a taste of their own medicine, they are finding it unpleasant. The article "The patent office meets the poison pill: Why legal methods cannot be patented" by Andrew A. Schwartz* (Harvard Journal of Law & Technology, Volume 20, Number 2 Spring 2007) gives an argument as to why legal methods should not be patented. In particular, it claims that "invention" should (still) be considered as "anything made by man that utilizes or harnesses a law of nature for human benefit", and that thus legal methods shouldn't be considered inventions. That paper tries to claim that it's a narrow notion that would allow many business patents, but it seems to me that the same arguments apply to business methods and software patents. I think most people would agree that mathematics and financial transactions are not "laws of nature" - and that would exclude many software patents.

"The Spoilsmen: How Congress Corrupted Patent Reform" by Zach Carter (Huffington Post, 2011-08-04) shows why Congress has been unable to fix the patent system in a way that benefits the public. It quotes Christopher Sprigman (an expert at the University of Virginia Law School), saying, "Congress has lost any capacity to piece together these private interests into a public-welfare-promoting change to the patent system".

"The Patent Pollution Problem: Its Causes, Effects and Solutions" by Daniel B. Ravicher (Executive Director, Public Patent Foundation (PUBPAT)) explains why so many bad patents are granted, stultifying innovation.

"Patent Troll Lawyers Smacked Down, Made To Pay Sanctions, For Mass Lawsuits Followed By Quick Settlement Offers" reports an interesting ruling by the CAFC in "CAFC in EON-NET LP v. FLAGSTAR BANCORP". In this case, a patent troll was threatening lawsuits, but was willing to settle for much smaller fees than a court case. The district court found that Eon-Net's case against Flagstar had "indicia of extortion" because it was part of Eon-Net's history of "filing nearly identical patent infringement complaints against a plethora of diverse defendants, where Eon-Net followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation". The court notes that "it's no surprise that most companies agree to settle. This is important, because we regularly hear from patent system supporters insisting that when companies settle, it's proof that the patents are valid. Yet, here, the court itself points out that's ridiculous: In this case, Flagstar expended over $600,000 in attorney fees and costs to litigate this case through claim construction... Viewed against Eon-Net's $25,000 to $75,000 settlement offer range, it becomes apparent why the vast majority of those that Eon-Net accused of infringement chose to settle early in the litigation... those low settlement offers - less than ten percent of the cost that Flagstar expended to defend suit - effectively ensured that Eon-Net's baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements [and] As a non-practicing entity, Eon-Net was generally immune to counterclaims for patent infringement, antitrust, or unfair competition because it did not engage in business activities that would potentially give rise to those claims." In the end, the court agreed and allowed the district court's award for Rule 11 violations and attorneys' fees.

One ruling that may help reduce some abuse is the Federal Circuit ruling on Cybersource Corporation v. Retail Decisions, Inc.. Here is the ruling. Again, this nibbles at the edges of the most absurd cases, instead of dealing with the root problem.

These can limit specific forms of abuse, but they don't really solve the problem.

Stopgap measures: Potential legislation/standards bodies rules

Here are some possible future approaches that might reduce the damage of software patents, until software patents are eliminated:

  1. Have fines proportional to the importance of the patent to the product, and do NOT normally "stop work" if a patent is infringed. At the least, "stop work" should not be an option if the suing party is not actively selling products/services using the patent. (Remember, software is typically built from millions of "inventions".)
  2. Eliminate triple damages unless the patent user was told that the specific patent specifically applied to that product. Software patents are essentially unreadable (most wouldn't be granted if they were clear) and there are too many to read, so it's absurd to hold developers to an impossible requirement. Let them innovate instead of reading nonsense patents.
  3. Eliminate the presumption in court that a granted patent is valid, at least for software and business processes. For any patent case, a court would need to determine if a granted patent is valid. The PTO's review process is absurdly poor, and the rules have changed significantly in the last few years, so this presumption is completely invalid.
  4. Courts should be required to wait for the results of any ongoing patent review before rendering a verdict. (See the Blackberry suit!)
  5. Require mandatory public review, before granting a patent.
  6. Require that IT interoperability standards be implementable patent-free. In particular, get ISO and others to move in that direction, and get standards-imposing bodies (like governments) on board. See Digistan for more.
  7. Non-practicing entities shouldn't have the right to enforce patents at all! Allowing non-practicing entities to enforce patents puts a big brake on innovation, because it can easily lead to cases where no one can build useful products.
  8. Reduce the absurd evidence requirements for patent defense, at least so that they are the normal courtroom requirements instead of extraordinary ones. U.S. Supreme Court agreed, in 2010, to review the standards for patent defense. Defendants currently have to prove patent invalidity case by "clear and convincing evidence" (an extraordinarily high standard not normally used and not specifically authorized by Congress) instead of the more usual "preponderance of evidence". This is especially absurd since patents normally get 20 hours or less of review, total. The Electronic Frontier Foundation (EFF) has more information.
  9. Software developers can try to write around patents, i.e., by implementing algorithms that avoid patent claims. Andrew Tridgell on Patent Defence discusses how to do this. This may be possible for a specific few patents if you know of key ones, and in some cases it is the wise thing to do for now, but in the grand scheme this is completely impossible. There are a vast number of software patents, there is no realistic way to search them, and many software patents are nearly impossible to decipher even if you found them (they are written for lawyers, not for practitioners, and are often very vague). Many patents describe prior art, or are obvious, or simply describe a problem to be solved instead of how to solve it. In any case, doing this distracts developers from actually solving problems. In short, this may sometimes be necessary for individual developers, but this is a big drain on innovation, and it is completely impractical to do in general.
  10. Reverse Bifurcation is a proposed procedural change. One strategy for dealing with patent trolls and software patents generally is "to decide cheaper and easier issues early in the litigation process". Dennis Crouch and Robert P. Merges' article "Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making" 25 Berkeley Technology Law Journal 1673 (2010) examines some of these. An example of the strategy is "reverse bifurcation", in which the "damages phase is moved to the front of the litigation sequence with the goal of figuring out how much is really at stake. This procedural move may be particularly appropriate in the case of patent holders who sue a large number of parties, including parties with relatively small potential damages pools, in the hopes of extracting the aforementioned undeserved rents".
  11. "Software Patents and the Return of Functional Claiming" by Mark A. Lemley (Stanford Law School, July 25, 2012, Stanford Public Law Working Paper No. 2117302) argues that "If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation." I think that software patents should not be granted at all, but this might help.

A few absurd patents

There are some absurd patents out there; New Way To Build A Snowman: Patented! lists some. These include:

  • Patent #6,004,596 on making a peanut butter and jelly sandwich without the crust.
  • Patent #6,368,227 showing a method of swinging on a swing sideways.
  • Patent #5,443,036 explaining a method for "exercising a cat" by pointing a laser pointer and "selectively redirecting said beam out of the cat's immediate reach to induce said cat to run and chase said beam and pattern of light around an exercise area."
  • Patent # 8,011,991 on building a snowman.

Anti-patent?

I think that allowing patents for software and business methods was a mistake; patents were historically not allowed to cover general algorithms and business methods for a reason.

I also think patents on pre-existing genes are rediculous. God created those genes, or if you like, they are a "law of nature". Thus, no one else should be allowed to claim that they are the innovator, since they are not. United States District Court Judge Robert W. Sweet invalidated seven patents on human genes in 2010, saying that the patents were "improperly granted" because those patents involved a "law of nature.".

I'm willing to believe that patents are quite appropriate for mechanical devices or new pharmaceuticals; I'm no expert in them, and there seems to be some weak evidence that they have advantages in pharmaceuticals. But for software and business methods, patents have been a complete and utter disaster. Let's end the mistake.


See my home page at https://www.dwheeler.com.

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