Let us imagine you are working on software for a mobile phone. When an SMS text message comes in you might think it would be cool to display it and highlight any email addresses or phone numbers in it. The user would tap an email address to add it to his address book, or tap a phone number to call it. It is a fairly obvious idea.
There are a few different ways you could implement it in software. I would probably have a bunch of regular expressions that matched phone numbers and email addresses, and for each type of match there would be a list of things that you could do. Have a think about what you might like to appear in a pop-up menu after you tapped an email address that appeared in a text message on your phone. I bet you can think of two or three things. Later you might think of new things to do with an email address, or new things that appear in a text message that could be highlighted so the user can tap them to perform actions on them. For example if someone sends a message saying “meet me at 7pm”, the user could tap where it says “7pm” and this time could pop up in the calendar to show whether there are already any appointments at 7pm. There are lots of things like this you could do.
To handle the possibility that you will think of these new ideas in the future, you write your software in a general way. You design general concepts like a pattern matcher that can look at some text and decide whether it is a phone number or an email address or some other text that you have not thought of yet. This sort of thing is done so often in software that the regular expressions I mentioned above were invented. This is a notation for describing strings of characters. For example the expression [0-9]+pm matches one or more of the digits 0 to 9, followed by the letters ‘pm’. Because this is done in software so frequently there are freely available software libraries that anyone can use and that given a text message and a regular expression will spit out a list of all the matching items in the text message.
There is some work in hooking up the various parts, but the point is that all the parts are known to programmers. We all know when regular expressions are useful, and we can all imagine how you would use lists of items that display actions such as “Add to address book” on the screen and then perform the action when activated by the user. I could write some code that would solve this problem in a general way in less than a day from first hearing a vague description of it.
The point is that it is obvious to anyone who writes software. Solving problems like this involves putting together some well known pieces in well known ways. I am emphasizing how obvious this sort of thing is.
The existence of patent 5,946,647 is not obvious. I can not really think of how I would find out about it without reading every single patent and I can not think of a guaranteed way to even know what to look for.
But if I write my obvious code in half a day, there is a good chance I would violate patent 5,946,647.
It is not certain. I have read the patent and it manages to convey the obvious idea in far too many words. So many that I would never be sure whether any given implementation fitted the patent. But there are only so many ways to do something this simple in software, and truly original ideas are rare. So the likelihood is high.
And Apple sued and a judge ruled that HTC has violated the patent and as a result will not be allowed to import devices with this software into the USA. This sucks.
For a patent to be issued, the idea is supposed to be original and non-obvious. There are some areas where this works okay. I think the patent system works reasonably well with respect to pharmaceuticals – there are some abuses when the patent system gets mixed together with the rules for clinical trials and the regulations that govern prescription drugs, but I think it works reasonably well.
In general though, the trouble with a patent system run by lawyers is that concepts like non-obvious and original do not fit well into the world of lawyers. Business model patents, algorithm patents, look and feel patents – we would be much better off if these things simply did not exist.
Groklaw has an artcle about this, here:
http://www.groklaw.net/article.php?story=20111220082732451
Kick me for being foolish, but surely there is prior art for this concept? Coupled with a large dose of obviousness?
DC: thanks for that link. I’m not sure Groklaw is right to focus on claim 1, though. I looked at the whole patent and tried to understand what was important about it. Claim 1 is just a description of the device that forms part of the system.
But I suspect there is prior art. Some discussion on this here.
Even without prior art, it sure seems like the “obvious to a skilled practitioner” thing should get them off.
And if I was HTC, I’d fight that into the ground.
Me, I’m a programmer. And a firm believer in IP rights.
And I increasingly think that software patents are mostly bullshit – I think we might come out ahead simply abolishing them, and definitely greatly restricting them.
If it was so obvious, it would already have been done.
Every software designer I know is firmly convinced that he/she could have dreamed up any software improvement that comes down the pike, if they had wanted to and had not been busy with something else. It’s something in the water.
I get this all the time – ‘well, that’s obvious!’. Well, yes, it’s obvious, after I show you an extensive set of diagrams, and a working example, and explain the invention to you in detail. Wasn’t so bleedin’ obvious before, was it?
“Obvious” is not the same thing as “I could have figured out how to do this, if I set my mind to it, and I had the time, and was tasked to do it.”
And – as always – if you have a beef with the idea of software patents, or business-method patents, then your beef is with the legislators and regulators who made those approaches available, and not the inventors and corporations that took advantage of the methods that the law made available to them. If the boot were on the other foot – if it were some tiny software startup that had just succeeded in getting the IPhone banned from sale in the US for violating their patent – would you feel the same way? Honestly?
llater,
llamas
llamas:
No, my beef is with both.
Just because the law allows somebody to do something reprehensible, doesn’t mean that they shouldn’t be condemned for choosing to do it.
In any case, many of those legislators and regulators are bought and paid for by those who profit from those monopolies, shaping legislation on their behalf.
Thank you Paul Lockett. A few days ago on another thread here many were defending the actions of banksters like Corzine, asking what law he broke.
Just because something is within the law (maybe) doesn’t mean you are compelled to do it. It may still be dishonest or immoral.
Excuse me, Mike, but I don’t remember anyone “defending” Corzine. The (legitimate) question was raised as to what specific law he violated (which, as far as I know, hasn’t yet been answered), but no one was justifying his actions. If you think otherwise I suggest that you go back and re-read the thread. I certainly agree with your point that merely because something is technically legal doesn’t make it right to do. The two are entirely separate issues, though.
It seems obvious to you only because someone else once had the great idea, made the product, and you’ve used it. You probably think that the wheel is obvious, the computer mouse, the phone, the post-it note, etc. but that’s because you’re familiar with them.
To a patent attorney trained in the semi-conductor field this whole mobile phone patent wars just seems so immature.
Obviously so many parties have so many patents that no one can do anything.
Just cross-license everything and move on with life. These law suits just seem immature.
Software patents are absurd. As a computer programmer I wish they did not exist.
Given that they DO exist, Apple and every other company would be stupid to not patent everything they can. And, once they have the patent they would be stupid not to enforce it.
More than stupid: their shareholders could sue them if they didn’t.
The good news is patents have a fairly short lifetime. I wish that this and everything else had been patented in the 80s, just like the XOR cursor or LZW compression. Then it would all be free now.
The rules of the game are stupid. Change them. Don’t blame the players for playing to the rules they’ve been given.
Maybe software should not be a patent issue, but a copyright issue. Just a thought.
And I propose a new term- ‘a Watson moment’. Watson was always talking about how obvious something was – after Holmes explained it! I was talking about a new idea of mine (that we should combine a back scrubber with a soaper, like those hand washes now available, so you can deliver soap right where you’re scrubbing), and everyone else says- that’s obvious, don’t we already have those? After I mention it, it seems obvious! Before then, they hadn’t thought of it. A Watson moment. I only mention the idea here because I am not working on that idea, but on something else- an improved version of The Self-hooking Button.
I suspect a search of the computer science literature would come up with mentions of things like this that are decades old.
Strangely vauge in a couple of critical areas I would have thought.
“Uses a pattern analysis unit, such as a parser or fast string search function,”
Ok thats unreasonably vauge.
Is it reffering only to parser/fast string, or trying to claim similar but different future techs as well?
I realise its tech arcana of the first degree, but unless you accurately state what you are specificaly patenting how does that stand?
We had the Samsung Galaxy tablet blocked here by Apple on an (apparently) spurious patent claim. Still it got Apple a month or so of unfettered market share in an area where 6 months is seeing a product lose its “cutting edge”.
And just before Christmas.
And Apple is the “nice” company…?
Yes, there is ‘prior art’ involved, namely the “Newton Operating System”, which entered public use in Aug 1993.
Cheers
I think that this article (scroll down to “We Don’t Need People Like You”) is highly relevant.
Not only is there an inherent problem with patents in software (copyright is a much more suitable form of IP), but also the US Patent Office seems to be completely ignorant of the prior art. (I doubt whether other nations’ patent offices are any better.)
Does anyone else remember the Microsoft vs. Timeline, Inc case from several years ago? Timeline’s patents included things that had been around for many years, like being able to select from multiple data sources through a GUI, yet Microsoft still lost. (It didn’t help that Microsoft had also apparently violated Timeline’s copyright at certain points.)
And no, I am seriously not a lover of Microsoft; one of my concerns with the Timeline case was that if Microsoft lost the case, they could then buy out Timeline Inc and have a US monopoly on Business Intelligence software. (Potentially a near-worldwide one, as most other IP jurisdictions seem to be taking their lead from the US.) For some reason, this didn’t happen then.
The idea of patents is that they make publicly known how to implement them, in return for a limited term monopoly. If no one actually uses the information disclosed in the way envisaged, they are failing in their primary purpose, and their is no justification for a state-sponsored monopoly.
How often does anyone writing software look through available patents for technologies they can use? Hardly ever, I’m pretty sure. Bear in mind, the majority of software isn’t written by software companies; it’s produced internally by the company using it, and never sold. Even a spreadsheet macro used by half a dozen people could potentially infringe on multiple patents.
Firstly, independent invention should be a cast iron defence to patent infringement.
Secondly, the information in the patent should be both necessary and sufficient to implement the technique described. In other words, a person skilled in the relevant field should not be able to do whatever the patent claims to explain how to do using only publicly available information, but they should be able to do it using only publicly available information and the patent contents – and that is the test that the courts should use.
If the patent information isn’t necessary, then the technique was obvious; if it isn’t sufficient, it doesn’t disclose enough to warrant a monopoly.
In answer to the “it’s obvious after you’ve thought of it” argument: it’s obvious because of the shared culture and meta-context of the software and user interface developers. We already have context sensitive menus, hyperlinks and pattern matching. The same techniques are used over and over in various combinations. There is no question that HTC stole an idea: they came up with it independently as I am certain have many others.
“independent invention should be a cast iron defence to patent infringement”.
Question: when courts rule on this sort of thing, is it asked whether an inventor took “reasonable steps” to establish whether invention was already covered by a patent, and of what sort? That seems to be me to be quite important. If a patent is easy to track down, then a person who invents the same thing might be in a less favourable situation than if a patent exists in a different jurisdiction and if that patent is impossible or very hard to find.
I am about to start reading this book that defends IP and will have some thoughts about it soon. http://www.amazon.com/Justifying-Intellectual-Property-Robert-Merges/dp/0674049489/ref=sr_1_1?s=books&ie=UTF8&qid=1324474593&sr=1-1
“independent invention should be a cast iron defence to patent infringement”
No.
The patent is a limited monopoly on profiting from the invention.
Assume a patentable invention.
Party A seeks and obtains a patent on the invention. They now possess a lawful monopoly on profiting from the invention.
Party B makes and markets the invention. When approached by party A on the grounds that their lawful patent is being infringed, they claim that they invented it indepedently. That may well be true – but they are still infringing on party A’s lawful monopoly over the invention.
If independent invention became an absolute defence against claims of infringement, patents would become worthless, because anybody could infringe them, reap what profits they can until they are caught, claim independent invention (which is impossible to disprove) and walk away scot-free. If the owner of the monopoly cannot get and enforce sanctions against those who infringe on it, then the monopoly is worthless.
In the US, patents are published weekly in the Federal Register and are available online on the day of publication. Anyone may know what has been patented, or seek the services of a professional to help them find out. The defence of ‘independent invention’ is an invitation to abuse – it would be like giving people a free pass for theft if they claim that they didn’t know that what they stole was the property of another. If something has self-evident value – a roll of $100 bills, let’s say – you cannot argue that it is yours to take simply because you do not know, and don’t feel you have any duty to find out, whether someone else owns it.
llater,
llamas
Llamas, that’s a pretty poor analogy that fails on several levels. Perhaps a better one would be that you failed to realize that your house was about to be demolished to make way for a bypass because the plans were located in a basement, in a locked filing cabinet located in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’.
So you’re defending legally-enforced monopolies?
The patent holder gets a limited monopoly in return for providing non-obvious useful information about how to achieve some end. Independent invention demonstrates that what the patent holder provided isn’t as non-obvious as claimed, reducing the value of the patent to the public, so reducing the value of the patent to the holder is only reasonable.
Independent invention is not impossible to disprove. They’d have to produce sufficient evidence that they neither read the patent nor reverse engineered any product using it to satisfy a jury.
What proportion of software patent infringement cases do you think are wilful? My understanding is very few, partly because companies forbid their programmers from reading patents to avoid the additional penalties they’d incur. The scenario you describe, with B exploiting the information in A’s patent, simply doesn’t happen. Rather, independent invention is the norm.
Patents are supposed to protect IP – which in principle is a good thing. However, in reality – especially the 21 century digital-information-technology reality – patents, even as an idea, are incapable of truly providing such protection in a fair manner. Patent law as it exists today seems to be even farther from such capability. Which leads me to the conclusion that the best way to protect IP is through contract law. I could be wrong.
@ Richard Thomas – no, it’s a good analogy. Unlike your Vogon approach, where you cannot even know that the information exists, the entire database of US patents (at least) is freely available to anyone that asks. The Congress has mandated that the centeral libraraies of major cities keep the entire patent archive available on paper for them as wants to persue it and don’t wants to use the Intertubes. If you’re working in a field where there might be a question of patentability, you’re a fool if you don’t take that into consideration, and the law is not intended to protect fools from the consequences of their ignorance.
If your quibble is that the information is complex and hard to navigate – well, yes. Welcome to the world of real innovation. It’s complicated.
@Sam Duncan, who asked ‘So you’re defending legally-enforced monopolies?’
Yes – in this specific case. No better means has been found to promote the development of new, novel and unobvious inventions – especially if those inventions are in the nature of being more or less non-rivalrous – than the limited, enforceable monopoly. The benefit is great and the societal cost is insignificant. It is the perfect self-regulating solution.
No better proof can be found than the fact that the US (even as its manufacturing power dwindles) continues to be the world’s hotbed of all sorts of developments in all sorts of fields, precisely because it has a very good patent system that strongly protects the rights of inventors and individuals. Not-surpisingly, the Congress has now moved to ruin that by trying to convert to a first-to-file system, at the behest of giant corporations. This will be the death of the very things that made the US system so great – and effective.
It should be noted that (in the US, at least) the monopoly is not enforced by the state – all that the Feds do is provide a court and some amount of process to resolve patent disputes. You cannot be arrested and thrown in jail for infringing a patent – the action and remedies are civil, not criminal.
llater,
llamas
In the software business 30 years, dealing with patents for 25 of those, and fully immersed in the c.s literature. I regularly read in the literature stuff that is novel, non-obvious and useful but after many many years of plowing through software patents I have yet to read one that was a) original b) not-obvious c) not-trivial d) not already in the literature and e) was not the subject of an overlapping patent already issued. The patent office not only has no idea of prior art in the literature but even prior art covered by previous patents. The LZW one being one of the most egregious examples.
I have only heard one valid reason for getting a software patent, as a defense against software trolls. Also useful if you want to dupe clueless V.C’s. Otherwise a giant legal scam thought up by lawyers, for lawyers, which utterly subverts the original reasons for issuing patents. To make public useful and original technical advances under the protection of a temporary monopoly. Nothing original or useful has ever been published by a software patent, and never will.
@llamas, yes there is a bit of a problem with “obvious in hindsight” sometimes, but this isn’t an example of it. (At least Rob describes it; the patent may cover something different)
It really is obvious (and most likely covered by prior art). A similar system has been implemented dozens of times in email clients, other phones (the Symbian S60), web pages. It may just be obvious because I’ve seen people do the exact same thing dozens of times (including in Software that’s probably older than I am, but either way it shouldn’t be patentable. Repurposing the basic idea that has existed for decades in email clients, and web browsers, and word processors (Microsoft Word includes something similar for email addresses and URL), is simple and obvious. The basic idea of using pattern matching to make certain more interesting information in a body of text easily available to users is also obvious. Once you’ve got to that point something like what Rob describes is what any decent programmer would come up with.
Something that is actually “obvious in hindsight”, but not obvious before you hear about it is Tabbed web browsing, but I think it’s safely covered by prior art making it non-patentable.
Though when I was checking into it I noticed this: http://www.internetnews.com/ent-news/article.php/3406551/Microsoft+Wins+Tabbed+Browsing+Patent.htm Not only is the idea of using a keyboard to navigate from one link to the next in a web page obvious, it’s also the only way the old text only web browsers, which existed before Microsoft could have done it, so it’s covered by prior art.
Sam Duncan- YES!!! I support patents. Whilst a monopoly, it is a limited monopoly. Also, the system has the benefit that it works. Countries without IP have trouble attracting bright minds to them. The USA had patents as part of its’ constitution, because the founders thought it was an important issue. As a wanna-be inventor (have I mentioned my self-hooking button?), the profit potential keeps me up late at night, improving my product.
And the Soviet Union was an IP-free zone, with no patent protection. It was never seen as a powerhouse of innovation, though. I don’t recall inventors rushing to move there.
And another idea- you say ‘monopoly’ as though it was a bad idea. But isn’t ownership of land a monopoly? Do you believe in private property?
Nuke, Llamas: Please remember that patents are not the only form of IP protection for software. Copyright is a much more suitable form of IP, and was pretty much the only form of IP available for software until the 21st century; are you going to claim that, say, the 1990s were less innovative than the noughties?
@TimP – if you feel that any given US patent is invalidated by prior art, there’s a perfectly good mechanism for getting the patent invalidated – file an interference, the Patent Office will examine it (won’t cost you a dime) and if your claim is upheld the patent will be invalidated. Happens regularly.
@Simon Jester – yes, I know that. But software makers are using software patents because the regulators made them available and they offer better protections than copyright does. You can’t blame people for using the tools that are given to them to their own best advantage. Once again, your beef is with the regulators, not with the inventors.
And I reject out of hand the argument made by Paul Lockett that software patents are somehow ‘reprehensible’, as though using a legal process to obtain a legal result is somehow a moral failing. You really can’t define why a software patent is reprehensible beyond a vague feeling that it’s somehow “wrong” to patent software.
The patent monopoly is perhaps the most benign form of monopoly there is. You only get it for a limited time. In order to get it, you must reveal in mind-numbing detail exactly how to produce your monopolized invention. Your monopoly is instantly revocable upon evidence that you obtained it improperly. And you are responsible to protect your monopoly, no-one will do it for you. In the US at least, your monopoly costs you significant amounts of money to get and maintain. As I said above, no better means has yet been found to encourage the progress of Science and Useful Arts.
llater,
llamas
llamas:
That is an example of the most pitiful type of legal positivism. I suppose if slavery were still legal, you’d be right up at the front, claiming that slaveholders were doing nothing wrong as they were “using a legal process to obtain a legal result.”
No, I feel all patents are reprehensible, because I am a libertarian and patents are an infringement of liberty.
Nuke Gray:
I think that’s a bit of an over-simplification. The constitution granted congress the power to grant patents, under specific conditions and with limits, as a compromise, as some of those involved supported patents, but others were opposed.
I don’t think there’s any weight in that argument, primarily because the whole structure of the state was so different that it would be absurd to attempt to attribute any part of it’s situation to it’s failure to provide statutory private monopolies.
So would I. I would hope the vast majority of people would view statutory monopolies as a bad idea.
Let’s put land to one side for a moment, as it is a special case; let’s look at private property in tangible goods. The clear difference between that and ownership of ideas is that tangible goods are rivalrous, so they can only be used by one person at a time, so what exists isn’t a monopoly, but a system which addresses the disputes which arise from physical reality of rivalry. Ideas are not rivalrous, so they do not need such a system of dispute resolution. The allocation of control to one person is a result of artificial rivalry – a monopoly.
No, Paul, let’s not “put land aside for a moment.”
You don’t believe in property rights in land either.
Come to think of it, considering that my property rights are an “infringement on (your) liberty,” are there any property rights at all that you acknowledge?
Sunfish
In my comment, I described patents as an infringement of liberty, not property rights. As I alluded to in my comment, I acknowledge property rights in rivalrous items, such as tangible goods.
“The clear difference between that and ownership of ideas is that tangible goods are rivalrous, so they can only be used by one person at a time, so what exists isn’t a monopoly, but a system which addresses the disputes which arise from physical reality of rivalry. Ideas are not rivalrous, so they do not need such a system of dispute resolution. The allocation of control to one person is a result of artificial rivalry – a monopoly.”
I think the debate can be summed up between those who regard the essence of property rights as ensuring peace between potential rivals and those – such as defenders of IP – who see the key issue as property rights as vital in establishing a framework for the creation of new things. It is not clear to me that a world without some form of IP is either desirable or possible, although the practical difficulties in enforcing IP in certain areas risk bringing the law into such disrepute that it should be abandoned or reformed.
Another problem I have with some – not all – critics of IP is how they say that IP violates freedom of speech. Not really sure about that. The key is the freedom to speak your mind, rather than just assert the right to copy the product of someone else’s mind. Ideally, we want freedom to encourage new thoughts, to encourage originality, and hence progress.
@llamas:
Actually, my beef is with you for making the claim, with regards to software, about patents that “no better means has yet been found to encourage the progress of Science and Useful Arts.”
As I pointed out, (a) copyright is a better form of IP for software, (b) software patents have only been around for about 10 years, (c) innovation has not significantly increased in software since such patents were introduced.
Additional points that I have alluded to elsewhere on this thread are that, contrary to your assertion that “you must reveal in mind-numbing detail exactly how to produce your monopolized invention”, many of the software patents granted (including the one referenced in Rob’s post) do not reveal in any detail how to produce an invention, but are instead phrased as generally as possible so that they can be used to claim other people’s inventions.
Also, that contrary to your claim that “Your monopoly is instantly revocable upon evidence that you obtained it improperly”, not only is it impossible to revoke an improper software patent “instantly”, even where there is existing prior art, but even when the opposition to a bad software patent can afford to pay for as many lawyers as Microsoft can, the outcome is still likely to be random (at best).
Also, you might be wondering why I keep putting software patents in bold. It’s because the subject under discussion is specifically software patents, not any other kind of patents – a point which you curiously overlook in your comments.
Can I please interject and possibly blow some minds here, but the patent in question is not a “software patent”, but what is known as a “computer-implemented invention”. Big difference.
And I’m chuckling to myself frustratedly with people citing modern smart phones etc as prior art against the patent! Cracks me up, that does. They are not prior art for this patent. Simples! I’ll leave it to the commentariat (except llamas, cos he probably already knows) to work out why.
If you can find a way of implementing it that doesn’t involve software, I’ll be genuinely impressed. Potayto, Potarto.
Presumably because the patent is dated 1999? As TimP pointed out, “the basic idea … has existed for decades in email clients, and web browsers, and word processors (Microsoft Word includes something similar for email addresses and URL)”.
Regarding the difference between software and computer implemented inventions, I suggest you read chapter 2.4 of “case law of the boards of appeal of the European patent office”, free for download from the Epo website http://www.epo.org
Although the specifics are for European interpretation, the generalities are the same.
As for prior art, almost, but the effective date is the date of filing (or priority if claimed). Ie early 1996. Personally I don’t remember automatic parsing back then, but that’s not to say it hadn’t been implemented somewhere and disclosed to the public. As with all these things, it’s what can be proved that counts.
Whatever one thinks about IP (patents and copyrights), this example that Rob Fisher brings to our attention shows Apple (and the courts) going much too far.
While googling around about this specific subject, I found this clear reminder that prior art existed at least as far back as 1983 built into Borland’s Sidekick DOS based TSR (Link)
What do you reckon folks?