Software and plumbing patents

Gary S. Becker,a Nobel laureate in economics, and Richard A. Posner, a prolific and renowned Federal Judge, are co-authors of a blog, in which they discuss a wide variety of topics.

The patent and copyright systems was a recent topic, and both men commented on software patents.

Posner wrote "pharmaceutical drugs are the poster child for patent protection" -- expensive to develop and cheap to copy -- and the "problem of excessive patent protection is at present best illustrated by the software industry."

Becker agreed, writing "I admit it is not clear where to draw the line between what should and should not be patentable. However, one can start by eliminating the ability to patent software."

I recommend their posts on patent and copyright as well as the comments that accompany them.

Professor Becker says it is not clear where to draw the line as to what should be patentable, but you know innovation when you see it.

Here are two examples. I agree with judge Posner that issuing a patent on the idea of swiping the screen to turn your phone on is "silly" -- incremental and obvious. Contrast that with the LDR 506 7041BK sink trap.

I've used a pipe wrench and plumber's tape to install and adjust a lot of sink traps over the years, but this morning I installed an LDR trap with no tools, no plumber's tape and little effort. You assemble the trap and snap the parts together with a twist. They click into place, there are no leaks and the assembly costs only $4.95. That is a patent-worthy invention.

Google patents the network OS

Google has been awarded US patent #8,239,662 for "a system for providing an operating system over a network to a local device."

The patent describes the system architecture and goes on to make 3 independent and 15 dependent claims for protection, but how unique are those claims? There have been several "thin client" products and Oracle marketed their Network Computer. Furthermore, is downloading a program that is an operating system conceptually different than downloading a program that is a Web browser or word processor -- where exactly do you draw the line between an operating system and an application program?

I spoke with intellectual property attorney Thomas Ewing of Avancept LLC about those 18 claims and he pointed out that "the number of claims a patent has is only very loosely correlated with its inventiveness." He added that while multiple claims are common in the US, they are less so in other nations and that to infringe upon a dependent claim, one must also infringe upon its corresponding independent claim.

He noted that the patent examiners initially questioned the novelty of several claims in Google's application and it took two rounds of rejection and appeal to finally get the patent, but characterized this as a "fairly typical back and forth with the patent office." He also noted that the patent examiner cited references to prior art in 1 issued patent and 6 published applications (listed below).

Ewing said that to infringe a claim literally, someone would have to do everything listed in the claim. I would think that engineers working on a competing product could find work-arounds that would differentiate their work from Google's. “There is a possibility for arguing infringement under what’s known as ‘the doctrine of equivalents,’” he said, adding that such arguments are often difficult to win.

Ewing also mentioned that it is unusual for someone as senior as David C. Drummond, Google's Senior Vice President, Corporate Development and Chief Legal Officer to sign the power of attorney for a patent application. He acknowledged that that may be standard procedure at Google, but, if is not, it may give us an indication of their commitment to the Chromebook.

With their Motorola acquisition, the Chromebook, Google TV, Nexus tablet and the quickly withdrawn Nexus Q, it looks like Google will end up a hardware manufacturer, heeding Alan Kay's advice that "People who are really serious about software should make their own hardware." They may also have noticed Apple's profit margins.

If you would like to really geek out on this patent, you can see all of the accompanying documentation by requesting information on patent number 8,239,662 at the Patent Office portal. I did so, and was impressed (and depressed) by the effort needed to secure the patent -- there are records of 46 transactions, 69 documents on file, 63 adjustments (some minor) made during the application process and contact information for 82 attorneys and agents (though only two attorneys actually filed the documents in the case).

Whether it is eventually upheld or not, this patent gives Google and its lawyers a weapon to use in the sad court fights that are so characteristic of today's computing scene.


-----

Prior art referenced by the patent examiner:

Patent:

• 7,343,560 - Method and system for generating dynamic images - owned by Novell

Applications:

• 20030126242 - Network boot system and method using remotely-stored, client-specific boot images created from shared, base snapshot image - owned by Compaq/HP
• 20040153694 - Reliability of diskless network-bootable computers using non-volatile memory cache - owned by Microsoft
• 20050091349 - Automatically configuring a computer - owned by SAP
• 20060010314 - Methods and systems for running multiple operating systems in a single mobile device - owned by Intellectual Ventures
• 20060047946 - Distributed operating system management - owned by MaxSP Corp.
• 20090083404 - Software Deployment In Large-Scale Networked Systems - owned by Microsoft

Is the intellectual property situation improving?

Computing device: US patent D558,753

Common sense has prevailed in three recent intellectual property rulings, and the judges are being blunt.

Last month, in a case where Oracle was suing Google, U.S. District Judge William Alsup, who has a degree in math, ruled that application programming interfaces cannot be copyrighted, stating that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API."

One of Oracle's claims was that Google had used a nine-line range checking function in order to bring Android phones to the market faster. In court, Alsup said he had written blocks of code like rangeCheck a hundred times befor and there was no way that was "speeding them along to the marketplace." Speaking to Oracle's lawyer, he said "You're one of the best lawyers in America, how could you even make that kind of argument?"

In another case, highly respected US appeal court judge Richard Posner has finally said the unsayable: that Apple's and other tech firms' patent battles are a ridiculous abuse of intellectual property law.  Posner referred to Apple's patent on unlocking a phone by swiping the screen as "silly."

And yesterday, a high court judge in London said Apple's slide-to-unlock feature was an "obvious" development in the light of a similar function on an earlier Swedish handset.

Every company does it, but it seems Apple files a lot of silly and obvious patents.  Did you know that Steve Jobs held 313 patents? (Most of them are design patents that cover the look and feel of a product rather than utility patents, which may cover a technical innovation). Check the interactive graphic accompanying the article and see which ones you consider to be unique designs.  (The ornamental design illustrated above was patented on January 1, 2008).