Telling good patents from bad

Many people feel there's a patent law crisis underway. The Patent office has been granting patents that either seem obvious, or aren't the sort of thing that should be patented. Some advance that software shouldn't be patentable at all, just as mathematics is not patentable.

I don't go that far, for reasons I will explain. But I have found a common thread in many of the bad patents which could be a litmus test for telling the bad from the good.

Patent law, as we know, requires inventions to be novel and not obvious to one skilled in the art.

But the patent office has taken too liberal a definition of novel. They are granting patents when the problem is novel, and the filer is the first to try to solve it. As such their answer to the new question is novel.

The better patents are ones that solve older problems.

Amazon was one of the earliest internet shopping operations. So of course they were among the first to look hard at the UI for that style of shopping, and thus were first to file an invention called one-click-buy. But one-click-buy was really just an obvious answer to a new problem. The same applies to XOR cursors, browser plug-ins, and streaming audio and video.

Some patents, however, are deserving. I remember seeing CS professors give lectures in the mid-70s about how Huffman coding was provably the be best form of data compression, even after Ziv and Lempel published their paper on their compression algorithms. They took a very old problem and came up with a new answer. Key management in cryptography was a 2000 year old problem, and Diffie, Hellman and Merkle came up with a bold new answer. (As did cryptographers at British intelligence, but I still don't think this makes this obvious.)

While it would not solve every problem, I think if patent examiners asked, "How long has somebody been trying to solve the problem this invention solves?" and held off patents when the problem was novel, or at least applied more scrutiny, we would have a lot less problem with the patent system.

Many people simply say, "we should not allow patenting of software."

This has always bothered me. To me, software and hardware are the same thing, and the rest of the world is slowly realizing that. The virtual world is the real world, and having one law for that done in software and another for that done in hardware is a poor course to take.Some added thoughts...

My main issue here is how to eliminate a class of bad patents being granted recently. The question of the validity of patents in software is a deeper one. I don't dispute that there are problems that result from patents in software, perhaps even more than we've seen from patents based in the physical world, or the biological.

However, I continue to find it inconsistent to regulate the virtual world differently from the physical world. Rather, if you identify a problem in patents in software, it is better to identify a change to the patent system across the board. I don't see anything in a data compression system that makes it more or less worthy of protection than the shape of an airplane or a self-balancing scooter.

However, my main point remains that many of the bad patents (notably the bad software patents) that are causing trouble these days fail my test -- they were not very clever solutions to novel problems, not novel solutions to hard problems.


I like your idea for filtering out some of the bad patents.

You're also right that some people simply say, "we should not allow patenting of software." I would like to put forward a couple arguments for that conclusion, rather than simply state it. Then I also have a question for you.

A few arguments against software patents off the top of my head:

0. Since software is already afforded copyright protection, which lasts the life of the author plus seventy years, software production is already adequately incentivized. To additionally provide patent protection to software drastically skews the bargain with the public that all "exclusive rights" bargains seek to achieve and instead provides the software developer with an unnecessary windfall.

1. Software patents have a disparate negative impact on the development of Free software, which for other public policy reasons we would prefer to promote. Free software developers, unlike proprietary software developers, are typically fiscally unable or philosophically unwilling to license patented software techniques. The benefits that Free software provides to both businesses and individuals are worth more to the public than providing a monopoly right to a software patent holder.

2. Software, by its very nature, is susceptible to fewer techniques for achieving its ends than are many other industries. Consequently, where in other industries one can "design around" a patented technique in order to achieve the same end and to thereby compete in the market with the patent holder, "designing around" in the software world is often much more difficult or impossible. There is often simply one or only a few reasonable or efficient ways to accomplish a given software task and if patented, unreasonably enormous amounts of software would be infringing or require licensing.

3. Software cannot be distinguished from mathematical algorithms, and we have traditionally not allowed the patenting of mathematical algorithms because we recognize how stifling to innovation such a practice would be.

4. The software and computer industries advances at a pace totally unlike other industries where we offer patents. Consequently, providing a 20-year patent term for software has a totally different impact in its industry than such a term does in other industries. This is not an argument for the abolition of software patents, but instead suggests that if we are to have such patents, they should perhaps only last two to five years. (How much software do you have from 1984 that really needed to be protected by patents these last twenty years to serve as an adequate incentive for its authors to produce it? None.)

Question: This isn't the first time I've heard a knowledgeable person disclaim any distinction between hardware and software. But, just as you're dissatisfied with those who provide no arguments for not allowing software patents, I can't accept this lack of distinction without a persuasive argument. Do you have one? It seems to me that there are several principled distinctions between the two.

I had the impression that one of the sections of a patent application was supposed to address this problem. The description of the problem (I think it's the "background" section) should describe the context and the problem to be solved in a way that makes it clear what it would take for something to be a solution, but without giving much of a clue as to what the invention is. If someone "reasonably versed in the arts" would come up with a similar solution given the description, then it shouldn't be patentable. If the description of the problem is clear, and the solution surprising in the context, then the patent should be awarded.

Admittedly this transfers some of the work of writing a patent to the task of writing a good description that doesn't telegraph the proposed invention, but there seem to be quite a few patents (one-click buying, for example) that would have a really hard time passing this test. It's simple enough that even the patent office could apply this test, and would be able to filter out more obvious patents.

Brad, I'm with you all the way!

The two things you're mentioning are connected:
* The first solution should not be patentable (unless it's a dynamite:)
* There is no reason why certain things in software shouldn't be patentable.

And it's not solving the first one that prevents the second one. There are so many new things in software, well, hey, half of everything is 'first time'. It'd all be patented. Yep, that would make a lot of work per-se and prevent everyone from doing anything.

Trackback from Ranting and Roaring: The better patents are ones that solve older problems.......

Trackback from Brian W. Carver -- Share Alike:Brad Templeton writes on his blog, Brad Ideas, that software and hardware are the same thing and so it bothers him that some would allow patents on hardware but disallow them for software. What follows is the comment I posted......

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