Software patents do great harm

(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at: lawrence@krubner.com, or follow me on Twitter.

Interesting:

Software developers don’t actually invent very much. The number of actually novel, non-obvious inventions in the software industry that maybe, in some universe, deserve a government-granted monopoly is, perhaps, two.

The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours.

Nevertheless, a lot of companies large and small have figured out that patents are worth money, so they try to file as many as they possibly can. They figure they can generate a big pile of patents as an inexpensive byproduct of the R&D work they’re doing anyway, just by sending some lawyers around the halls to ask programmers what they’re working on, and then attempting to patent everything. Almost everything they find is either obvious or has been done before, so it shouldn’t be patentable, but they use some sneaky tricks to get these things through the patent office.

The first technique is to try to make the language of the patent as confusing and obfuscated as possible. That actually makes it harder for a patent examiner to identify prior art or evaluate if the invention is obvious.

A bonus side effect of writing an incomprehensible patent is that it works better as an infringement trap. Many patent owners, especially the troll types, don’t really want you to avoid their patent. Often they actually want you to infringe their patent, and then build a big business that relies on that infringement, and only then do they want you to find out about the patent, so you are in the worst possible legal position and can be extorted successfully. The harder the patent is to read, the more likely it will be inadvertently infringed.

The second technique to getting bad software patents issued is to use a thesaurus. Often, software patent applicants make up new terms to describe things with perfectly good, existing names. A lot of examiners will search for prior art using, well, search tools. They have to; no single patent examiner can possibly be aware of more than (rounding to nearest whole number) 0% of the prior art which might have invalidated the application.

Since patent examiners rely so much on keyword searches, when you submit your application, if you can change some of the keywords in your patent to be different than the words used everywhere else, you might get your patent through even when there’s blatant prior art, because by using weird, made-up words for things, you’ve made that prior art harder to find.

Now on to the third technique. Have you ever seen a patent application that appears ridiculously broad? (“Good lord, they’re trying to patent CARS!”). Here’s why. The applicant is deliberately overreaching, that is, striving to get the broadest possible patent knowing that the worst thing that can happen is that the patent examiner whittles their claims down to what they were entitled to patent anyway.

Let me illustrate that as simply as I can. At the heart of a patent is a list of claims: the things you allege to have invented that you will get a monopoly on if your patent is accepted.

An example might help. Imagine a simple application with these three claims:

1. A method of transportation
2. The method of transportation in claim 1, wherein there is an engine connected to wheels
3. The method of transportation in claim 2, wherein the engine runs on water

Notice that claim 2 mentions claim 1, and narrows it… in other words, it claims a strict subset of things from claim 1.

Now, suppose you invented the water-powered car. When you submit your patent, you might submit it this way even knowing that there’s prior art for “methods of transportation” and you can’t really claim all of them as your invention. The theory is that (a) hey, you might get lucky! and (b) even if you don’t get lucky and the first claim is rejected, the narrower claims will still stand.

What you’re seeing is just a long shot lottery ticket, and you have to look deep into the narrower claims to see what they really expect to get. And you never know, the patent office might be asleep at the wheel and BOOM you get to extort everyone who makes, sells, buys, or rides transportation.

Post external references

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    http://www.joelonsoftware.com/items/2013/07/22.html
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