Coyote Blog

The evidence is fairly clear that it is past time to reform the US Patent Office, particularly in its handling of software and Internet-related patents.  One of my ex-employers, Mercata, managed to obtain several patents (including a few that were awarded postmortem) that in effect patented volume discounting (though the method was sortof kindof clever).  Amazon famously managed to patent 1-click ordering, and numerous companies from Red Hat to Blackberry have been subject to expensive suits from various patent trolls, many of whom never took a single step to monetizing or developing their patents besides hiring lawyers. 

Stephan Kinsella at Mises has another good example:  Apple is attempting to patent the ordering of take-out food by cell phone.

Genius! Apple's done it! They've solved the problem of waiting in line for food or beverages. You place your order before you get it--but not the normal way--see, here's the pure genius of it--you place your order, get this, you won't believe it, wirelessly.
Yep! Who would have thunk it? I mean, I know it's well known to call in
a food order and drive there in time to get it, so you don't have to
wait in line (and this might be done on a (wireless) cordless home
phone, or a (wireless) cell phone, but I digress); or to place your
order and receive one of those little blinky-buzzy things that tells
you when your order is ready, so you don't have to wait in line (hey,
aren't those little blinky wireless buzzers, er, wireless? but again, I
digress); and it's known to communicate wirelessly; and in other
countries, it's well-known to use cell phones to make purchases. And in
McDonald's, you can place your order at a little automated computer
kiosk (but maybe it uses wires! Whew--HUGE difference, lemme tellya).

But, my God, Apple! Oh, it's amazing--the innovative brilliance to think of using a cell phone--a cell phone,
do you hear me!?--to place an order for a cuppajoe... so you don't have
to stand in line... it's so beautiful, I'm about to shed tears...
Sniff... Thank God for the US patent system giving them a king's
monopoly on this unique idea. Otherwise, no one would have come up with
this!. And let's only hope Apple gets a patent on this and is able to
sue or threaten other companies to pay them royalties for all their
remotely similar "wireless communications systems". After all, it's a small price to pay to have the American innovation we do.

There was a time when I was naive enough to think that the US Patent Office would step back and say -- "oops, we screwed up.  We really didn't know what we were doing when we were flooded with all of these business-model-masquerading-as-software patents.  Now we realize we need to get our act together."  Congress is going to have to step in and reduce or eliminate the patentability of software and business models (all other software other than computer code is subject copyright law, not patents).

But of course, Congress will never make these reforms, because forcing business competition into the courts under arbitrary and changing law rather than settling business model superiority in the marketplace generates far more political activism and campaign donations.  So why am I even bothering writing this.  Never mind.

Postscript: By the way, if I were running a software or Internet company, I would be filing every dumb patent application I could think of, because if I don't, someone else will and will and then I am stuck with a suit and trying to prove priority.  Which causes me to think of one way we might force reform -- a sort of reverse strike.  Every software company in 2008 should strive to file as many patent applications for every BS thing they can think of.   Maybe a deluged PTO might at that point force some kind of reform.

Its clearly time for patent reform as it applied to software.  In the last ten years, software engineers have apparently have been able to convince hardware-centric patent examiners that some pretty basic software concepts are "non-obvious" and patentable.  Guestblogging at Overlawyered last week, I mentioned one such patent, the Amazon "1-click ordering" patent, which to me is clearly copyrightable, but not patentable.

Rob Pegoraro makes a similar point in the Washington Post, editorializing on the Blackberry suit:

No, the problem here is simpler. There are too many bogus patents getting handed out.

One
solution would be to make more things unpatentable. Just as you can't
-- or shouldn't -- be able to patent a mathematical equation, in this
scenario you wouldn't be able to claim ownership of things like the
general workings of software (any individual program is already
protected by copyright) or business methods. The U.S. has been a
pioneer in turning those things into new types of intellectual
property; perhaps it's time to declare this experiment a failure.

Another,
somewhat overlapping solution would make it harder to get any patent.
The patent office would apply a higher standard of "non-obviousness" --
the idea that a patent shouldn't reward "inventions" any competent
individual could have thought up. And any outside party could submit
evidence against a patent before it became final.

I am generally sympathetic to Blackberry's plight, in part because I went to school with Jim Balsillie, the CEO of RIM.  One thing Pegoraro missed in his editorial:  The US Patent Office has already said it made a mistake in issuing the original patent that RIM was found to be violating.  The nullification of this patent is working through the system, and RIM is pleading that the injunction against them wait until this process is complete, sort of like a victim on death row begging not to be put to death because the prosecutor has admitted that based on new evidence, he shouldn't have pursued the case in the first place.  RIM has offered to settle with NTP (the patent holder)if there is a give-back if the patent is invalidated in the future, but NTP has refused this.  This all makes for an interesting drama, with a lot of brinksmanship.

By the way, though I am sympathetic to RIM to some extent, that sympathy is diminished by this:

In 2002, RIM sued software developer Good Technology for its wireless
mail-transfer technology and "smart phone" maker Handspring over its
miniaturized keyboard design. Both wound up forking over licensing fees.

As I wrote before, what goes around, comes around when you use the legal system and the long hand of the government to step on competitors.