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.

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).