The Christian Science Monitor has an article informing its readers about a new patent out of the Patent Office: "Systems and methods for enticing users to access a web site" describing the Google Doodle.
The article quotes Matt Rosoff from Business Insider:
If you needed any more proof that the U.S. patent system is totally out of control, here it is: after ten years of lobbying, Google was granted a patent on Google Doodles this morning.
But Mr. Rosoff should rest easily. The title of a patent or the invention that it is based on does not control the exclusive rights of a patent. That would be the claims. An infringer would have to have every element in the claim in their infringing product/process in order to be liable for infringement. The Google patent has only 4 claims, only one of them is an independent claim, the first of which is:
1. A non-transitory computer-readable medium that stores instructions executable by one or more processors to perform a method for attracting users to a web page, comprising:
- instructions for creating a special event logo by modifying a standard company logo for a special event, where the instructions for creating the special event logo includes instructions for modifying the standard company logo with one or more animated images;
- instructions for associating a link or search results with the special event logo, the link identifying a document relating to the special event, the search results relating to the special event; instructions for uploading the special event logo to the web page;
- instructions for receiving a user selection of the special event logo; and
- instructions for providing the document relating to the special event or the search results relating to the special event based on the user selection.
So, this is not just about changing logos. The logo must also be a link or link to search results. So this isn't just about changing fun logos depending on the special event or day but has to be done by making the logo a link to a document relating to the special event or search results with the special event. The image has to be animated. The image has to be a modification of a standard company logo. The reason this is so specific is most likely because they needed it to be to get around prior art. At the same time, it is easy to design around. Looking at the file wrapper, you can see that the claims as filed were numerous and broad and they got whittled away during the long prosecution including a trip to the Board of Patent Appeals and Interferences. This does not show a system that will allow anything through.
What is interesting is the Patent Term Adjustment on the Doodle Patent: 2618 days. That shows an incredible amount of delay on the application. Over 7 years, with a pendency of almost 10 years. That's certainly a sign of a broken patent system.
In a two page order filed 8/11 in the Eastern District of Texas, Judge Leonard Davis entered final judgment against Microsoft for willful infringement of U.S. Patent No. 5,787,449 (issued Jul. 28, 1998) assigned to Infrastructure for Information Inc. The patent covers a “Method and system for manipulating the architecture and the content of a document separately from each other.” What is ironic about this is that Microsoft was recently issued U.S. Patent No. 7,571,169 (issued Aug. 4, 2009) covering a “Word-processing document stored in a single XML file that may be manipulated by applications that understand XML.”
This reminds me of one of the, albeit at first confusing, maxims of patent law. A patent is a right to exclude others from making, using, selling, importing, etc. the patented invention. It does not give an affirmative right to the party to do any of those acts. The example that commonly exemplifies this is the case of an improvement. Adam makes a widget out of A and B. Bill comes along and improves upon the widget, adding element C. Both get patents on their invention. Bill is unable to fully exercise his invention because Adam holds the original patent, and Adam cannot make the improvement because of Bill.
Microsoft was ordered to pay $200M in damages, $40M in enhanced damages, post-verdict damages, as well as pre-and-post judgment interest. The court also ordered a permanent injunction, barring Microsoft from, inter alia, “selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML” during the patent term. The patent expires 17 years from the date of issue, July 28, 2015.
According to SEC filings, “[t]here are over 50 other patent infringement cases pending against Microsoft, 10 of which are set for trial in fiscal year 2010.“
BIO, the Biotechnology Industry Organization, filed an amicus brief last Thursday asking the Supreme Court to overturn the Federal Circuit decision in Bilski v. Doll, a decision which created the "machine-or-transformation" test in which a method or process is only patentable if it is tied to a machine or if it transforms an article or substance into something different.
BIO joins many other industries who have voiced concerns about the uncertainty of the MOT test as applied to their technologies. For the biotech industry, BIO points out how biological, diagnostic, and other medicinal method patents could be challenged by the MOT test resulting in negative impacts on the biotech industry.
A key concern is that investors will shy away from the industry due to a lack of confidence in biotech patents as a vehicle for recouping research and development costs. Developing products in the biotech industry is an expensive and lengthy process often involving scientific research, clinical trials, and regulatory approval. Without strong, enforceable patent rights, it is doubtful the industry could survive and innovation would be stifled.
Clarification on the issues presented in Bilski is certainly warranted in regard to biotech IP. The MOT test does not seem to translate well into the biotech area. For example, the natural phenomena utilized to produce biotech patents are not analagous to the abstract ideas utilized to produce business method patents. A distinction cannot easily be made between patentable and nonpatentable subject matter in biotech by requiring a machine or transformation. Photosynthesis is a process that could pass the MOT as it transforms carbon dioxide, but should not be patentable as it is a natural occuring process. But by the same test, a diagnostic method would be deemed unpatentable if it does not incorporate a machine or if the patient is not "transformed." For biotech, a better test would better focus on whether something is a man-made biological process or a naturally occuring biological process.
As the NY Times reports, unbeknownst to Amazon’s Kindle customers who purchased e-books of George Orwell’s 1984 and Animal Farm, the titles were secretly deleted from their owners devices. The books were deleted and customers accounts credited because the books were added to the Kindle store by a company that did not have rights to them. As comments rolled in on the Times’ Bits blog many questioned what it means to own an e-book.
Different protections exist for the protection of dead trees of older tech and the ones and zeros of the new age. These differing schemes afford the purchasers of the different media different rights with respect to their copy of the same underlying work. Technology and norms create differing schemes for protecting content owner’s rights. For instance, copyright law’s first sale doctrine (17 U.S.C. 109) gives the owner of a copy of a copyrighted work the ability to sell the copy without needing authorization of the copyright holder. This right does not extend though to works that are acquired through “rental, lease, loan, or otherwise, without acquiring ownership of it.” 17 U.S.C. 109(d). Here we see law work in tandem with societal norms: “I own this book, I can do with it like I please.”
Moving to the digital age where the norms have not been set in stone there are many differences. Some differences are technological while others are differences in the norms of the medium. Digital files are easily distributable due to networks like the Internet and can be copied from one device to another easily without destroying the first copy. The ease of making a perfect copy creates a different landscape than in the world without digital files. The other major difference is that the copy that the user has does not degrade over time, unlike “real” copies. (Though, it can be argued that in an ever evolving world of file formats, a single file’s shelf life may not be that long as a new file format supersedes it without backwards compatibility without an easy conversion process.) Also, with a change in medium also created a change in the way works are distributed. From one where the consumer “owns” the product to one where they merely license it. These ease of license agreements and limitations of use of the product are due, in part, to the ease the works are transmitted. This ease worried copyright holders and so they have lashed back and educated the public that file sharing and other forms of digital distribution are wrong (morally and legally). Also through the introduction of DRM and other digital locks, it became more difficult to freely and easily transmit files. Norms were created that said “I can use this book, but I cannot share it with anyone else.” And so, while it was commonplace for people to share a CD, book, or video game, due to new norms, locks, and licenses digital versions of the same works are effectively for the purchaser only.
It is interesting to see the immense freedom (anarchy) the digital landscape provided originally created a world in which there is more
control over content than ever. It appears in the future we will see more tactics like Amazons to retake the data they sold the user. Like the article noted: “it’s like Barnes & Noble sneaking into our homes in the middle of the night, taking some books that we’ve been reading off our nightstands, and leaving us a check on the coffee table.”
The Supreme Court recently granted cert in Bilski v. Doll, which most believe will change the test for patentable subject matter. Supreme Court precedent has carved out three exceptions to patentability under 35 U.S.C. § 101, these are laws of nature, physical phenomena, and abstract ideas. The quintessential law of nature is Einstein’s famous formula: e=mc^2, which is unpatentable subject matter. A patent cannot be granted that merely states this equation, as it would preempt all uses of the formula. What can -and has- been patented is the application and use of equations, for instance the Arrhenius equation in Diamond v. Diehr.
Computers and their applications have changed the world we live in. Many problems are solved by the use of the computer, from communication to commerce, and from filing your taxes to putting a man on the moon. Computers have taken over many tasks such as running your car to running voting booths. Since their creation there has been a melding of hardware and software to accomplish these goals. Many problems that computers can solve can be handled on both the hardware and software levels. Much of the power in today’s general purpose computers is that we do not need specialized hardware to perform specialized tasks. Methods that can be used to solve difficult problems thus can be solved similarly at both the hardware and software levels and so protection for one without protection for the other is meaningless. Especially since the use of these methods on a general purpose computer could require no additional hardware to perform the needed functionality.
I do not want to discuss the anti-competitive effects of patents generally, or to software patents in particular. I have not studied these in depth but will note that since software patents have been granted the United States has continued to be a hotbed for innovation in software industries having many of the largest software firms around the world. But, I also understand that software is special, there exists a vibrant open source community unlike any other field which is willing to innovate without the need for financial incentive and exclusive rights.
A problem that some have with software is that it is merely an algorithm for performing some task. And, that any task performed on a computer can be performed by a person with a pen and paper, given enough time. I both agree and disagree with that argument, as fundamentally it is correct but I believe that it is an oversimplification of what software does. Simple algorithms like converting a number from decimal to binary and back (as seen in Gottschalk v. Benson) can easily be done using either means. But, what about all those applications that are for computer specific purposes that doing them by hand does not solve the actual problem?
For instance, public key encryption such as RSA was developed as a way to securely encrypt data without first requiring the parties to have created a key to decrypt their communications. Performing the operations by hand or in our mind does not actually solve the problem where it exists, for performing operations on the internet and with computer systems. By limiting the technology to a computer (in a patent’s claims), it does not preempt uses of the algorithm in the mind or on paper, just the method’s use on the machine. This is akin to patenting a new use for a drug. Even though the drug itself may be in the public domain, this new use may be patented. Additionally, there are algorithms that make no sense without a computer system. Programs such as sending email or instant messages have no purpose without interfacing with additional hardware. For this technology to make sense, you must use additional hardware and practicing these algorithms without the use of a computer is pointless.
Software merely makes use of public domain formulas and applies them, just like traditional mechanical inventions. Take a chair for instance. It works by applying the standard laws of physics. Using a computer, or a pen and paper, the chair could be “proven” to work as well, just as a piece of software can be and just as large scale buildings and bridges are. All inventions, mechanical or software based draw upon fundamental principals that themselves are not patentable, but by applying them to solve a problem we move beyond the abstract and into the spectrum of patentability.
Novelty and obviousness also cloud the picture. When we look at the wide spectrum of patentability we see things that immediately make us cringe. Most of the things that make us cringe are because the inventions that we see on this spectrum have been done before. While difficult, it is imperative to separate patentable subject matter from fulfilling all the requirements of patentability, including §§ 102 and 103. Many of the problems that people have with the patenting of software is that the inventions are in the prior art. In this regard, the piece of technology should not be patented, but the class of technology may very fall within the prior art. I see this frequently when discussing patents like the infamous Amazon “1-Click” patent. Most who find that this patent should be invalid think that the technology is obvious.
The patent system is our way of protecting innovation. As we do not know where the next class of innovation is, or how expensive it will be to develop, we should not look to limiting the scope of patentability. Expansive scope has been a cornerstone of our system of patents and enabled the United States to have many technological advances. While not perfect, the patent system is a good trade off of exclusive rights for innovation.