

EFF Politely Asks PTO to Stop Issuing So Many Crappy Software Patents - bane
https://www.eff.org/deeplinks/2013/04/eff-politely-asks-pto-stop-issuing-so-many-crappy-software-patents

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rlpb
I have filed a patent. It is a hardware invention, but generally would be
implemented in software.

Keep in mind that for a patent to be granted the invention must be:

1) Non-obvious to someone skilled in the art. 2) Novel (ie. not done before).

Patent attorneys and patent offices seem to only use a test for novelty. They
tell me that if an invention is obvious, then somebody would have done it
before. They have no specific test for non-obviousness apart from
demonstrating prior art. They seemingly have no ability to refuse a patent by
just claiming that it is obvious. To them, lack of prior art is evidence of
non-obviousness.

It is as if they live in another world, where the only inventions and ideas
possible are the ones previously patented.

I can only assume that this has come about because a test for non-obviousness
is subjective. It's easier for an examiner to let it through and lets the
courts sort out the mess later, at our expense.

It seems to me that this is the root cause of ridiculous patents. In
technology, we're moving too quickly for this. We need a better solution.

~~~
skore
> They tell me that if an invention is obvious, then somebody would have done
> it before.

So it either already exists, or makes sense to be patented?

This truly boggles the mind.

Then again - does it really? If you are a patent lawyer, your job depends on
there being lots of patents. The definition "anything that hasn't been
patented should be" seems to be the logical extreme to serve that equation.

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benbataille
PTO is never going to stop issuing crappy patents. There is a huge conflict of
interest there.

It's easy. Every time someone files a patent, the PTO gains the filing fees.
If they don't check too much, people file a lot and they win a lot. If they
check, it means first more cost for them, then less patent filed hence less
money.

Now, what happens to them, when they accept bogus patents ? Answer : nothing.
The PTO is simply not accountable for that.

No surprise they have no incentive to do their work properly.

~~~
ritchiea
Government agencies don't really work like that. The PTO doesn't get to give
itself raises based on profits. The PTO's behavior is based on legislation,
court interpretation and a small sliver of their own interpretation after the
direction they receive from those more powerful government bodies. Last year
there were about 577,000 patent applications [1] at $180 each for a little
over $100M in revenue. That's fantastic if you're most companies, but just a
tiny portion of the federal budget.

The current patent situation is a failure of the federal government to
understand and legislate contemporary technology, not a misalignment of
incentives.

1\. <http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm>

~~~
ScottBurson
While I agree that there is a failure to understand contemporary technology, I
also think the incentives given patent examiners are misaligned. They're
rewarded for applications processed; they're not graded on the number of bad
patents they reject.

A patent is a deal we, the people of the US, make with an inventor: add
significantly to the sum total of our technical knowledge, and in exchange,
we'll give you a time-limited monopoly on the technique you invented. The
problem is that there isn't anyone unambiguously charged with making sure this
is a good deal for us: that the knowledge we're getting is worth the price
we're paying. It's technically the PTO's responsibility, and they do make some
effort, but the incentives given patent examiners don't encourage them to be
hard-nosed about it.

Currently, I don't think patents about to be granted are reviewed by the
examiners' supervisors or anything like that. Seems to me there should be an
internal committee that reviews every patent about to be granted by junior
examiners, and an occasional one of those about to be granted by senior
examiners, to verify its quality. Repeatedly approving applications that then
get rejected by this committee should slow an examiner's promotion progress.

~~~
jhdevos
But right now, there isn't even a way to get a patent revoked in a court
because of obviousness or triviality. Prior art is basically the only way to
attack a patent.

It's the entire system that is built around the assumption that 'obviousness'
is too difficult to measure objectively, and that protection is vastly more
important than anything else, so we should always err on the side of
protection when laying the boundary of what should be patentable and what not.
In other words, better to have 1000 bad patents than running the risk of
having 1 idea that should be patentable being rejected by accident.

No thought is given to the enormous damage this does to our industry.

~~~
chii
i suppose obviousness could be 'tested' for if the end result of the patent
can be deduced by only looking at the end result and not reading any of the
patent filing.

~~~
ScottBurson
Yes, I've had this thought too. Have a panel of engineers who get to see a
description of the problem the invention supposedly solves, but get no
information about how it solves it. If any of them come up with the same idea
within a couple of days, it was obvious.

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ysapir
While the patent system seems broken as far as software patents go, some of
EFF's corrections (in <https://defendinnovation.org/>) are problematic. This
includes "Avoid liability if they arrive independently" (what happens if the
general news about a company doing X profitably is enough to let you work out
an algorithm independently, the company doing X still wants to protect the
effort it spent to figure out X when it wasn't clear it would be profitable)
or "can't collect millions if the patent represented a tiny fraction of the
product" (what if it is a small piece of code in millions of lines, but
without it there would be no product?).

Also, the patent system should be modified to allow some way to handle
customer discovery. Something like a single provisional filing fee allows you
to file many iterative documents repetitively (with MVP source code perhaps)
and those later provide a basis for priority date if proof is supplied they
were customer-tested.

~~~
vilya
If just knowing that it's possible is all it takes to be able to independently
reproduce an invention, then it shouldn't have been patentable in the first
place. That's pretty close to being the exact definition of the "non-
obviousness" criteria the USPTO is supposed to apply.

~~~
ysapir
No I don't think that's exact.

If you need to know that it's possible in order to make it, then it is non-
obvious.

Maybe the algorithm is obvious, ie, to do X you need to do steps 1, 2, and 3,
but X itself, the basic functional creation that employs the algorithm, is not
obvious.

Swipe-to-unlock, the basic algorithm, how to implement it is pretty clear. But
matching and researching which gesture works with which functionality, to the
degrees customers find it natural took effort and time, and it produced a
creation that was not obvious before that research.

Besides, if this is already part of the current rules, why do we need to amend
the rules for it? Just enforce the rules better.

~~~
vilya
The wikipedia page about the non-obviousness test [1] says:

"The purpose of the inventive step, or non-obviousness, requirement is to
avoid granting patents for inventions which only follow from "normal product
design and development", ..."

What you described for swipe-to-unlock is very much the normal product design
and development process, so doesn't (well, _shouldn't_) qualify it for patent
protection.

And yes, I agree: the rules DO need to be enforced better.

[1] [http://en.wikipedia.org/wiki/Inventive_step_and_non-
obviousn...](http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousness)

~~~
ysapir
That wikipedia page quotes an article by John Barton that argues that the
criteria for obviousness should be restricted. The particular quote you cite
is from the section where Barton explains his proposed criteria, rather than
the current criteria. The full sentence reads: "Only research beyond that done
as part of normal product design and development should be rewarded with a
patent. Routine redesign should not be enough, for there is no need for
monopolies as an incentive for such research." [1] The word _should_ is key,
it is what Barton thinks _should_ be the case, even if it isn't today.

In fact, the law as described by Barton in the earlier section of his paper
shows that the non-obviousness criterion was deliberately weakened over time,
specifically when the Patent Act was passed in 1952 that eliminated a
requirement for a "flash of creative genius."

Anyway, I am not a law expert. I am an entrepreneur. My interest is to be able
to invent without fear that after I invented and researched and showed that
some form of product was viable, some large company (Google, Microsoft, Apple,
etc) or a competitor or any other group would then replicate it, claiming to
have arrived at the product independently. The bottom line is that it wouldn't
foster innovation, it would hinder it. I would have no incentive under the
patent system to go to investors and secure funds to do research if in the
small chance that the research is fruitful, I will not be able to protect it.

[1] Draft version of Barton's article:
<http://emlab.berkeley.edu/users/bhhall/ipconf/Barton901.pdf>

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richardjordan
Sadly the way things appear to work nowadays unless you politely ask enough
law makers with enough large checks attached to your polite requests, little
happens.

~~~
Ygg2
You mean bribe?

~~~
alive-or-not
You mean lobbying? ;)

------
DigitalSea
You can lead a horse to water, but you can't make it drink. You can lead a
corporate horse to water but you'll have to give it hundreds of thousands of
dollars to make it drink. Everyone has been wanting the PTO to change the
patent system, but it's most likely not going to happen (if it ever does) for
a very long time.

~~~
KNoureen
Isn't it good that the PTO resists pressure from either group? I mean, the
only part which would have influence on how they work is the entity above PTO,
whichever that one is (Supreme Court/DOJ/?).

~~~
DigitalSea
It's both good and bad. It seems no matter how many people complain or
companies like Google come forward and try and change things by kicking their
feet around and causing a scene, nothing changes. The fact the system is such
a mess and changing even the slightest part of the entire patent process would
undoubtedly spawn more legal action than you could imagine from big and small
companies alike who make their money off of obscure patents. When it comes to
politics money talks, maybe someone should start a lobbyist website where
people can crowd-source funds to lobby Government to get things changed? A
Kickstarter for government lobbying to benefit the people.

~~~
derefr
> A Kickstarter for government lobbying to benefit the people.

That's actually a great idea--it's basically a petition with a donation
required to sign (thus making it into something that actually has autonomous
power, rather than some names on papper.)

------
geebee
One reason that software patents are so crappy is that the patent bar actively
filters out the people who would be most knowledgeable about mathematics and
algorithms.

The problem is that algorithms and math are not considered patentable. The
guidelines for membership in the patent bar specifically exclude mathematics
coursework as a valid educational background. The reasoning, I believe, is
that abstract laws should not be patented.

However, with the rise of software patents, we clearly are allowing algorithms
and mathematics to be patented. However, the patent bar actually specifically
excludes the background that would be most useful in evaluating these patents.

It makes sense if you think of the patent system as a cartel. By allowing math
to be patented, you expand your domain. By denying people with a mathematics
background to sit for the patent bar, you restrict your competition.

Sometimes, when you're confused by a bad policy, just ask yourself: what would
a person with no morals, plenty of power, and a single minded desire to enrich
himself do? Usually, that will explain the policy.

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tfigment
I suspect that even if they allowed submitting code then it will probably not
be mandated which language be used and we will likely get something like
obfuscated javascript or Brainfuck or god forbid obfuscated Brainfuck (if that
is not redundant) in the patent.

Documented code would be a great step forward if we decide we have to keep
patents around because at least your money is buying source code in some form.

~~~
Osiris
How does that differ from Copyright? Copyright already protects the actual
source code. So, companies should rely on copyright and trade secrets to
protect their secret sauce, not patents.

I read a patent application the other day that basic said that someone with a
knowledge of the field would be able to reproduce the invention using the
patent as a guide. The application was 50+ pages long and I couldn't get past
about 10 of then without dying a little inside.

~~~
just2n
I've read a number of software patents and I would definitely not be able to
reproduce the invention using just the information in the patent. Rather, I'd
have to take the described functional claims and build something that does
what it says. So they're almost fully functional.

The code should be included to uphold the spirit of the patent. A patent is a
temporary monopoly granted in return for telling everyone how your invention
works. If all you do is enumerate what your invention does in your claims, you
haven't described how it works, and if the patent is granted, you've
effectively only described any implementation of your idea, which is a huge
problem.

Providing source code narrows the patent to AN implementation of an idea, and
to experts in the field, actually explains in a common language (not legalese)
exactly how it works.

Have a read of the brief the EFF put together for the PTO. It's somewhat
readable, even for an engineer.

------
CodeCube
Where is the PTO located? Can some local HNer just, apply for a job there? I
think interested technical parties should try to "infiltrate" the organization
to get more information and be able to answer some of the questions that just
keep getting asked in every forum ad-nauseum and maybe do a reddit AMA or
something.

~~~
patentnerd
Hi, I'm a patent examiner. I won't apologize for the agency, we have more than
our share of problems, but I also think we get more than our share of
criticism for bad patents.

The PTO simply has no ability to change patent law. We apply it as it's
written by Congress and interpreted by the courts. A few points on the law
without getting into criticism of the agency (you can get easily find that
elsewhere):

1\. The burden on patent applicants is too low. There's a presumption that a
patent will issue as soon as it's filed. The patent examiner has to prove that
whatever is claimed was obvious, didn't work, wouldn't work, etc. If the
patent examiner can't meet that burden, the patent issues. The patent
applicant doesn't have to tell us about the state of the art prior to the
"invention", what the improvement is, or why it deserves a patent.

2\. As discussed upthread, the obviousness standards are too low. If you can't
find evidence that each and every aspect of a claim was in the prior art, you
have to allow the patent. Even then, a patent attorney can attack the
rejection if the different prior art documents wouldn't fit well together. As
an examiner, you can't simply say that something would have been obvious, with
no supporting evidence. If you try to make such a rejection, the patent
attorney will appeal your rejection, you'll get reversed on appeal and the
patent will issue anyway.

3\. The process naturally skews towards patent applicants. Most (nearly all)
patent applicants have an attorney who is fighting 100% for as broad a patent
as possible. The examiner is supposed to be a neutral arbiter who applies the
law in an evenhanded fashion. There's no party fighting for the public,
pushing back hard against the patent attorney. It's like a courtroom where
only one side of the story is presented.

You can find a lot commentary/criticsm of the patent examination process
online BTW, but not generally on the tech sites - look more towards
legal/academic literature.

(Speaking on my own behalf, not the agency's)

~~~
chris_gogreen
For a hacker trying to find data suggesting the PTO and possibly some patent
agents are not performing due diligence, where would you propose we start?

How many patent agents are there employed by PTO? Are they all full time?

~~~
CodeCube
This is a great effort to make a public repository of due diligence:
<http://patents.stackexchange.com/>

I wonder to what degree examiners use this before granting a patent.

------
dlitz
Won't this just allow the incumbents to threaten others with their crappy
software patents, while making it harder for new entrants to acquire enough of
their own crappy software patents to defend themselves?

A pretty good argument has been made that we should just legislate that
developing, distributing, or running a program on generally used computing
hardware does not constitute patent infringement.[1] Why not just do that?

[1] [http://www.wired.com/opinion/2012/11/richard-stallman-
softwa...](http://www.wired.com/opinion/2012/11/richard-stallman-software-
patents/)

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chris_gogreen
Let's publicize who the actual people reviewing the patents are, some personal
accountability for the patents someone issues or approves could be powerful.
I'd like to understand the KPI's of the PTO, are there patent agents issuing
patents faster than possible? Robo signing? Are there incentives for an agent
to issue more patents to keep organization wide throughput high? Where can I
get Open Data related to the PTO?

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Egregore
Is there a way to explain to other people (non software developers) how bad it
can be to issue patents for obvious things? So that their voting power will be
directed in the right direction.

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charlesjshort
Tell Congress to eliminate the incentives for Examiners to issue quotas of
patents.

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corporalagumbo
Seems pretty reasonable...

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eepar6
Is there anything a layperson can do to help?

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wissler
The more and crappier the better, since it discredits and bogs down an
intrinsically broken system, which we can only hope would lead to its demise.

