Software Patent Horror

Ever since Amazon managed to patent one-click ordering, I have been skeptical of software patents.  When I was in the Internet field, I saw companies patent some, uh, patently obvious stuff, roughly akin to patenting an on/off switch.  Or even worse, multiple companies would get patents for the equivalent of an on/off switch, with this company claiming it has the patent for on-off switches for lighting, and this one for appliances, and this one for all electrical devices, and then all three end up sitting in court for about 10 years arguing about who has the patent for turning on the bulb in your refrigerator.

Kevin Drum brings us an amazing horror story of a patent that apparently I owe licensing fees for -- and probably you do too.

Vicinanza soon got in touch with the attorney representing Project Paperless: Steven Hill, a partner at Hill, Kertscher & Wharton, an Atlanta law firm.

"[Hill] was very cordial and very nice," he told Ars. "He said, if you hook up a scanner and e-mail a PDF document—we have a patent that covers that as a process."

It didn’t seem credible that Hill was demanding money for just using basic office equipment exactly the way it was intended to be used. So Vicinanza clarified:

"So you're claiming anyone on a network with a scanner owes you a license?" asked Vicinanza. "He said, 'Yes, that's correct.' And at that point, I just lost it."

Drum has a good discussion, including some prior art with which he actually participated.


  1. tex:

    It is worse, much worse. While patents are invalid when they are obvious or there is prior art, the PO make no attempt at such discovery. They patent nearly anything. The PO relies on law suits to determine validity.

    And it is much, much worse. Recently (2011, 2012?) the right to a patent is to the first to file rather than the first to invent. Further, previously a patent could not limit your use of something you previously invented or were using, though you probably had to prove you already had the thing. In the 80s an engineering magazine recommended you not patent your invention unless you could earn at least $4M from it because the cost to defend it would be greater than your gain. Note: EU has been this way for years, but I don't think they recognize software patents, though there are exceptions and, of course, US [lawyers] are pushing them.

    Conceptually, patents were established to increase innovation by making inventions public information with protections for making it so. Patents were to make us all richer. As now done, patents grossly inhibit innovation. Apple spends more in IP lawsuits than on R&D, mostly to suppress competition. Then, of course we have the trolls, whose business model is to sue over nothing and receive a few $K to drop the suit as the target would spend much more defending themselves. And we are all poorer than with no patents at all.

  2. epobirs:

    I recall at the time of the one-click patent that Jeff Bezos said they had a meeting every few months to run down a list of new features on the site and to consider whether it might draw a patent troll. If yes, they'd preemptively patent it themselves even if they thought it ridiculous. It had been decided it was a worthwhile expense to prevent trolling and even something of a public service.

  3. lewis:

    Took the guy 13 years to beat down a patent officer but he finnaly got it:

    7,624,044: “System for marketing goods and services utilizing computerized central and remote facilities”

    Then turned around and sued 85 companies that use computers to rent stuff to people. Very painful...

  4. Jon Nyman:

    We should call patents what they used to be called (along with copy rights): Grant of monopoly.

  5. MingoV:

    Software patents aren't the only patent horror. Decades ago Abbott Diagnostics patented a protein measuring technique that used two different antibodies to sandwich the protein. However, this technique was in the public domain. Abbott got the patent because it used two monoclonal antibodies instead of one monoclonal and one polyclonal. That difference was trivial, but Abbott got the patent, sued other companies using the technique, and dominated that sector of lab testing for the next 15 years.

  6. marque2:

    It wasn't exactly nice though when they offensively used the One click patent in suits on other companies.

  7. john mcginnis:

    The worse patents of all are process patents. For example, Dell has the patent on `May I help you` as part of their BI script process. Business process patents should be declared null and void. They a mere subtle attempt to hijack the english language.

  8. herdgadfly:

    About ten years ago, an outfit by the name of PanIP, LLC was terrorizing the the internet claiming it had a patent that covered e-commerce systems, which would even cover almost everybody including the likes of Amazon. However, Panip did not dare attack the big guys with megabucks, they instead went after the little guys.

  9. mesocyclone:

    It's a real mess. As a just retired hardware and software practitioner, I've seen a lot. It used to be impossible to patent software or a business process - they were considered akin to patenting a mathematical formula. We even had a very innovative system patent denied (mid 80's) because of that sort of (usually correct) reasoning, although Canada and Japan did grant that patent. I worked with the patent attorneys on all of this. Our hardware patents were challenged on prior art (but we got them through because they were actually novel). The software patents (and the system patent) were just thrown out.

    All of that changed and the gates were opened to software patents. Software patents quickly became a real problem. The PTO used to (maybe still does) try to find prior art. But since software hadn't previously been the subject of patents, their favorite prior art - patents - wasn't available. Most actual prior art was in source code that was never published. The result was a never ending spate of patent grants for things both common practice and the obvious (PTO refused to hire software engineers). These days, it;s probably not possible to write a piece of software without violating a patent every 10-100 lines of code.

    Then, business process patents became legal. The meant the first one to patent, say, renting rooms in a hotel, owned the rights to that practice for 17 (now 20) years.

    This stuff seems to be an example of the elite (patent lawyers in this case) extracting rents by increasing bureaucracy and then charging others to navigate it. Patents are hardly the only place this is happening. These elite credentialed Iilliputians are rapidly tying down the Gulliver of our economy. This may bring us down even before the entitlements and Obama's borrowing.

  10. NormD:

    Its even worse than worse.

    In the paper "Scaling the Patent System" the authors point out that there are so many new software patents granted each year that if you wanted to avoid infringing just new patents the time it would take just to read the patents, assuming a ridiculous 10 min per patent, would require two million new patent attorneys.

    As far as I know all tech companies tell their engineers to not read patents, mostly to avoid the charge of willful infringement.

  11. nehemiah:

    If you reach into your back pocket to take out your handkerchief and blow your nose, please beware that I have a process patent on that. I'm expect approval on the toilet paper process any day now. I'm really going to clean up with that one.

  12. marque2:

    Copyrights can be abused too, like the fellow who copyrighted 2000, and Y2000 and a few others.

  13. rxc:

    I once had to deal with a claim by a very large US company that F/a=m was a proprietary formula. They were not successful.

  14. obloodyhell:

    "First thing we do, let's kill all the lawyers..."

  15. obloodyhell:

    You've got POCKETS?!?!?

    I have the patent on USING those, thank you. My attorney K. Anga Rhu, Esq., will be in touch with you shortly.

  16. obloodyhell:

    Copyright is in even worse shape. Not only are they ridiculous, and now, with the Bono Bill, you can basically assume they are permanent and eternal.

    If it ain't in the Public Domain NOW, it never will be.

    And the real, actual problem is that copyright-as-control is **literally** impossible to enforce without utterly screwing up the internet in its entirety. But you are still getting clueless idiots attempting the equivalent of legislating pi to exactly three.

    If you have not read it already, I strongly recommend anyone interested in IP law read the Wired article by John Perry Barlow:

    The Economy of Ideas

    It's just as valid, almost 20 years later, as it was then.

  17. jhertzli:

    Intellectual property rights would clearly be a good idea in a perfect
    world, but when administered by imperfect governments they can be

    That sounds familiar somehow...

  18. obloodyhell:

    And here we have an example of why I despise current copyright:

    Concerning Christopher – An Essay on Tolkien’s Son’s Decision to Not Allow Further Cinematic Licensing of His Work

    Explain, please, why this child of a great writer should be able to dictate to society how his fathers' 60-year old works should be used...?

    It's not even like HE wrote them. His FATHER wrote them. Yet somehow HE has the sole right of control? WTF?

    Copyrights need to be, at the least, reduced to 30-odd years, not extended permanently as per Disney's "Bono bill".