A steady stream of Patents have been coming from the U.S. Patent
Office over the last few years, which have left folks in the
software industry frustrated and outraged.
With Patents that were issued to Amazon, Alta Vista and more
recently McAfee getting extensive headline coverage, many have
asked themselves what is afoot over at the U.S. Patent and
Trademark Office. How can such universal software concepts
such as "One-Click Purchasing", "Search Engines" and now,
"Auto-Downloading of Software / Software as a Service (SaaS)"
become items that are allowed to be Patented by companies?
Most Patent experts do not take these "junk Patents" seriously
knowing full well that they will be overturned by the courts
and other processes set up to police the system.
Amazon is set to test their patent in September of 2001 against
BarnesandNoble. During an injuction hearing, the judge stated
that if BarnesandNoble simply instituted a two-click system
then he had nothing that could be said about their use of this
purchase system.
Alta Vista's Search Patents will fall because the creator of
Archie has proof that his system was in fact "prior art". Given
that Archie provided the first search engine, what does that
tell us about the management at Alta Vista who tried to claim
that they invented search technologies? More important to this
discussion, what does this tell us about our Patent System that
allows Alta Vista to get a patent on search technology in the
first place?
McAfee now boldly claims that "what it really holds is a Patent
on the future of the Internet." If there were half a chance this
Patent could survive the test of time, then they would be right
in their assessment. Again, the question comes down to how, even
after two-and-a-half years of investigation, the U.S. Patent
and Trademark Office could make the determination that McAfee
invented these concepts and were worthy of receiving a Patent
for such?
What makes this current system so frustrating is that processes
that have been considered common knowledge for years are earning
patents on a regular basis. With the broad range of definition
being granted with the modern Patents, all areas of software
development are being negatively influenced.
Dozens of software developers have already spoke up to ZD-Net /
eWeek / Talkback concerning the story about the McAfee patent.
Here are a few of their comments:
( http://www.zdnet.com/eweek/stories/general/0,11011,2802506,00.html )
Allen Vander Meulen, an Independent Consultant from West
Chester, PA said:
A patent on "Auto Update"????? Ridiculous!!! I was writing
code to do auto-updates for PC software across LAN's and via
modems in the late 1980's and early 90's. (Of course, there
was no internet component or any need for authentication at
that time!)
Al Pareigis, a Software Professional from Oak Brook stated:
The patent is nuts!
The fundamental concept of check and download upgrades auto-
magically has been a cornerstone of software distribution.
Heck, the last one I wrote was in the mid 90's. It was using
OS2 clients with Rexx routines to do that for a 911 center.
Sprucing up the concept with words like 'web', 'browser' and
'server' does not change the fundamental concept. It is a
common practice and knowledge to the profession.
Mauri Presser, a Computer Specialist from Virginia stated:
This reminds me of the conflict between Microsoft and Apple
in the case of the Trashcan vs. the Recycle Bin. Both icons
(folders) serve the same purpose. The "Auto Update" feature
in any software serves the same purpose, to automate the
process. Just like batch files in the command line days, or
script files, or for that matter, any software. I remember
entering commands on a Sperry Univac computer sold to the US
Navy called the AN/UYK-20, that did not have a keyboard.
During troubleshooting, instructions and data were entered
by using a 16 switch maintenance panel. The operating system
and parameters could also be loaded by magnetic tape or paper
tape. The point is, these means of program and data entry
just automated the process. Does anyone have a patent on the
"concept" of automation? Or is it only the method that gets
the patent?
Martin Willcox, an IT Manager from Manchester, United Kingdom
cut to the chase:
"The McAfee case clearly demonstrates just how absurd and
anti-competitive the notion of patenting software really is.
Very little software is genuinely new or novel - in reality,
most of us in the development community spend our lives
either refining and extending ideas that go back years or
porting those ideas to new technologies."
Martin Willcox's assessment of the situation is right on the
mark. Companies are now using the Patent system to try and bury
their competition.
Think about Amazon for a moment. Two months after Amazon received
their Patent, they filed suit against BarnesandNoble.com
their number one competitor. If BarnesandNoble had not been as
strong as they were financially when this suit began, the legal
fees could have buried them! "This nonsense raises the cost of
doing business, since it takes years and costs $1 million or so
to break these junk patents."
( Quoted from: http://www.trudelgroup.com/pwars.htm )
What if BarnesandNoble had been a young upstart? Could they
have survived if they had little cash and a million dollar
legal bill? How many small companies could have afforded this
attack? How many small companies could have survived the
litigation process even when they were in the right?
To obtain a patent under our system, an inventor must file an
application describing and claiming the invention (which must
be in the broadest sense of the word new, non-obvious,
and useful) with the U.S. Patent and Trademark Office (PTO).
The PTO assigns the application to an examiner who conducts a
search of existing inventions (known as "prior art") and then
issues a patent if nothing fishy turns up.
Under this system, which was last modified in 1999, the only
real method for weeding out the bad patent is through costly
litigation.
There are indications that there are actually several factors
at play in the problems that exist within our Patent system:
The PTO examiners are not given the kinds of tools they need
to complete their jobs as they would wish, as indicated by
this story:
A September, 1999 letter from the Patent Examiner's Union
Chief to the Patent Advisory Committee stated in part, "What
examiners are asked to do, and what impact those directed
activities will have on the quality of patents, are clearly
matters of great concern...." PTO examiners are being
pressured to solely use a system called WEST for their
patent searches, an "information retrieval system with
debilitating flaws; not only is the system frequently
incapable of performing even simple word searches, the
results are often woefully incomplete and even inaccurate,"
and that "searches using the new system take longer to
perform, produce fewer results than the systems that they
replaced, and thus prevent us from doing our jobs."
(Source: Washington Post, November 19, 1999).
The staff at the Patent and Trademark Office is understaffed
and under prepared to meet the challenges of the system in
today's rapidly expanding technology sector and technological
knowledge base.
Consider this. If a net-savvy programmer worked for the PTO,
then none of these patents would have occurred, as he would
have the knowledge available to him to make sound judgements.
Unscrupulous companies are taking advantage of the inadequacies
of our Patent system to position themselves in such a way that
they can legally extort their competitors through the use of
the U.S. Patent and legal systems.
The only recourse available, to those who feel that a bad
Patent has been imposed, is expensive litigation or submission
to the legal Patent holder.
By signing our petition today, you can contribute to our project
to bring the U.S. Congress to consider the possibility of
repealing the application of Patents to the software industry,
or to investigate the processes and procedures of the U.S.
Patent and Trademark Office (USPTO) to discover and solve
the inherent problems that are allowing for the system to
be abused.
http://www.PatentTrail.Org/petition.html
About the Author
Bill Platt is the founder of http://www.PatentTrail.Org , a
non-profit website dedicated to bringing the U.S. Congress to
take action to remedy the situation that has developed at the
U.S. Patents Office concerning Software Patents.