now with more cowbell
a call for patent reform
Posted: 2003-03-24 12:18
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Author: Phil Gengler
Section: Stuff

History & Background

Article I, Section 8 of the US Constitution states that "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". With that, the US patent system was born.

When the USPTO was first created, the length of a patent term was a 14 year term. The first patent statute stated that a patent would be issued for "[an] invention or discovery sufficiently useful and important."
Over the years, the scope of patents granted by the Patent Office has increased, mostly due to decisions that affirmed "anything under the sun that is made by man" could be patented, and to allow the patenting of methods of doing business.

The Problems Of The Patent Office

The patent office has evolved from an organization that verified patent claims and followed it's mission closely - to provide protection for new, useful, and non-obvious (to someone in that field) inventions. It has turned into little more than a thinly-veiled way of making more money for the government. Patent inspectors are expected to meet quotas for approved patents; oftentimes this quota is beyond anyone's capability to even investigate the claims. It seems that the Patent Office has taken a rubber-stamp attitude towards approving patents, letting the courts decide which are valid and which are not. And since the patent office has almost no accountability, nothing is done to reprimand it for it's (in)actions.

Not Just The Patent Office

The problems with patents extend far beyond the Patent Office. While the root of all these problems may lie with the office, the abuses of it that we see are all done by those applying for the patents.
There are countless examples of companies (and even individuals, in some cases) applied for patents on anything and everything they've done, just to prevent a competitor from doing something similar. These defensive patents, as they're known, most certainly do not 'promote the progress of science'; they serve only as leverage to those seeking to dominate a market. This is expressly not the purpose or intention of patents.

Other problems lie with the things that are patented. Knowing that anyone with the money can most likely receive a patent, companies are seeking out patents on things just so they can take others to court and receive damages from patent infringement.

Another abuse of the patent system is donating patents and writing off the expense, as this NY Times article covers. Companies are applying for (and receiving patents) for the $4,000 in filing fees and the like, a company can obtain a patent, claim it's worth millions, and then donate it, writing off the value.

Patently Absurd

Some of these points can best be reinforced with some examples. So, here's a few, with some explanations of what qualifies them as abuses of the patent system.

6,368,227 - A method of swinging on a swing
This patent covers swinging by alternately pulling the chains of the swing. This is not new (it has been done many times), it may be useful (it can be fun), and it certainly fails the non-obviousness test (I know many people who have done it this way). This patent was granted about a year ago.

6,004,596 - Sealed Crustless Sandwich
This patent covers creating a peanut butter & jelly sandwich without an outer crust. This hardly needs explaining - PB&J sandwiches without crust were a part of many people's childhoods, certainly before the 1997 filing date of this patent. Useful seems to apply (though this is often the case), and again, it's obviousness is glaring. This patent was granted in 1999.

6,505,212 - System and method for website development
This patent covers the use of a source-control and versioning system as part of creating a website. The amount of prior art for this is staggering, and should have served as a clear sign this is not new or obvious (see the Slashdot discussion for examples of prior art, such as CVS [Concurrent Versions System]). This patent was granted this January.

6,430,602 - Method and system for interactively responding to instant messaging requests
This patent, granted to ActiveBuddy, covers any form of script or program that responds to any user request sent to it. Prior art for this goes back to at least 1993 (with the creation of Eggdrop bots for IRC), and no doubt goes back even further than that. This patent provoked this letter from me. The letter should address the reasons this patent should be considered an abuse. This patent was granted in Aug. 2002.

6,513,042 - Internet test-making method
This patent basically covers giving a test online. This patent brings up something I'll mention later, namely, patents granted for old inventions/ideas but applied to the Internet. This patent was granted this January.

Numerous other examples exist; too many of them to list even a small part of them here.

Patents And The Internet

Here's a question that I feel should be asked more by patent inspectors. Does applying an existing idea or invention to the Internet make the result new or unique? Through the actions of the Patent Office, it would seem the answer is yes; but logic would seem to dictate the opposite. In fact, some patents granted relating to the Internet are absolutely nothing more than someone else's work applied to the 'Net. There's no innovation, just a sense that they could 'own' something on the 'Net. Patents aren't being used to promote innovation, they're being used to create and maintain monopolies; to generate revenue.

Wrapping Up

The US Patent System has strayed from it's original mission to promote scientific progress, and has now found itself promoting monopolies, which it was never intended to do. By moving the burden of validating patents from itself to the already overworked court system, the Patent Office has made itself nothing more than a rubber stamp, facilitating corporate greed.

The patent office needs a complete restructuring. It needs to have both its limits and its procedures carefully defined, and available as public knowledge. It needs to adhere to its mission. Most of all, it needs to be accountable for its mistakes.


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