Sunday, May 07, 2006

US Patent Law - A Constitutional Chaos

A reader wrote to ask me what was "absurd" about the Visto claim against RIM.

For background, we urge our readers to take a look at the EFF's Patent Busting Project and we ask that you support the EFF in its effort to reform a US patent law system gone far astray from the original sane intentions of the U.S. Constitution.

Here is now my answer to that reader:

Article I, Section 8 of the U.S. Constitution provides, inter alia, 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....
"

This section of the U.S. Constitution is the sole and entire legal basis of patents granted by the United States Patent and Trademark Office (USPTO). That clause provides that an "inventor" has an "exclusive right" to his "discoveries" - and that is all.

The interpretation of this clause by Congress and the courts over the years has been a general legal disaster, as can be easily seen from the Find Law annotations to this clause. Faulty Congressional legislation combined with terrible judicial decisionmaking - accompanied by hopeless jury trials on technical and patent matters about which the juries understand next to nothing - has led to the ludicrous and deplorable if also long foreseeable situation in which US patent law finds itself today.

Today, patent trolls and patent-filing conglomerates, who have in fact "discovered" or "invented" no physical product of any consequence, who often have no product at all, and whose filed patents play no role in the promotion of the progress of science or the useful arts, nor who otherwise contribute to the public good in any manner, are being increasingly awarded patent judgments far out of proportion to any possible societal contribution made. The RIM / NTP case is a great example of outright madness in American law in this regard.

Worse, through the threat of or granting of injunctions against established and successful businesses, patent trolls are now operating as well-oiled and well-funded patent-filing extortion machines demanding the dismantling of businesses and the destruction of products, so that they can pocket undeserved monies at the cost of the common weal.

As written in RIM, NTP and Patent Madness by Steven J. Vaughan-Nichols at E-Week concerning the recently settled suit between NTP and RIM, a settlement made at the gunpoint of a business-destroying threat of injunction:

"A major business and a vital part of American business communications are hanging by a thread because of software patents that everyone, except for NTP and one judge, realizes are garbage. "

This was never the intent of the U.S. Constitution and no sane interpretation of its provisions could possibly lead to the chaotic patent law application that we see being made by the confused courts today.

Now some unknown company named Visto has just brought another action against RIM (Blackberry), hoping for similar undeserved windfall millions as obtained by NTP from RIM under the threat of an injunction which threatened the very essence of RIM's Blackberry business.

Take a look e.g. at the Visto patents, some of which are under reexamination, but one of which has been reissued by the clueless USPTO.

We ask: What is "non-obvious" that has been "discovered" by NTP or Visto and what "invention" has been made that is deserving of the granting of patent protection in terms of the U.S. Constitutional provision? The answer is - nothing has been discovered, and nothing has been invented.

Rather, in the case of Visto, the USPTO has again patented a bunch of methods which are so obvious within the context of the state of art of technology as to deserve zero patent protection. "Methods" are not discoveries and neither are "electronic configurations of hardware" or software rightly classifiable as "inventions".

Under the present American legal system, the USPTO is no longer patenting discoveries or inventions - rather they are rewarding "the first to file" ideas, in the form of methods. The U.S. Constitution never intended patent protection for that.

As any user of any electronic device knows, electronic and computer equipment can be hooked up in a myriad of ways to obtain a myriad of results, all dependent upon the state of art of technology. NONE of these infinitely possible configuration variants should be subject to patent protection if no physical product is being invented.

It is clear that the original U.S. Constitution was talking about physical products and not methods, ideas, hardware configurations or software. A hardware configuration is not a "discovery" or an "invention", rather, it is a method of stringing electrical components together. Software is not a "discovery", neither is it an "invention". Rather, software is a method, a way to do something with hardware using that software code to instruct that hardware. The notion that these are "discoveries" or "inventions" within the meaning of the U.S. Constitution is absurd.

Only the specific implementation of a given system or method in a physical PRODUCT is an "invention" and only that specific implementation - as a physical product - should be patentable, and nothing more. Inclusion of systems or methods in OTHER products are separate inventions or discoveries to which other implementers of such or similar systems or methods should have no claim at all in patent law. A method is not a physical product which is "invented" or "discovered" - rather, it is APPLIED to the making of a physical invention. How the US courts have come to the absurd idea that methods are discoveries or inventions for purposes of US patent laws is one of the dark chapters in the development of the US legal system.

In addition, the U.S. Constitution never intended that any inventor have the right to all imaginable VARIATIONS of any given physical product, but only to the product that HE has produced, if any. Otherwise, the U.S. Constitution would have said that a discoverer has a right to HIS discovery and ALL variations by other discoverers, but the Constitution did not write that at all.

A mouse trap patented as operating by the obvious method of enclosure of the mouse did not give the inventor the right to prohibit others from inventing or making other kinds of mouse traps operating by the method of mouse enclosure nor did it give the inventor a right to share in or to appropriate the proceeds that others by their work and skill have generated due to their better business and/or technical skills in marketing, selling, designing or producing THEIR enclosure mouse trap, as long as this mouse trap is not fully identical with the physical product which has been manufactured and submitted to the USPTO for patent protection. Catching mice by enclosure is OBVIOUS. What NTP and VISTO have patented through a clueless USPTO are general methods OBVIOUS to anyone in a similar technical situation, just as in the mouse trap analogy, and they are thus neither inventions nor discoveries.

And yet, this most simple of principles is not understood by the U.S. Congress today and apparently is understood even less so by the U.S. legal community, especially not by the judges. That is the absurdity of US patent law today.

The scope of protection being given to patents is far beyond what is justified by the provisions of the U.S. Constitution and this over-extension of the U.S. Constitution is leading to totally undeserved windfall profits - generated by other businesses - to be awarded as veritable judicial "gifts" to patent trolls. We find it incredible that the U.S. legal community permits this kind of misappropriation of monies, which breeds disrespect for the rule of law and undermines the basis of capitalism and entrepreneurship, which are at the foundation of the American economic system.

Here is a paragraph from the Visto patent (6085192) recently renewed by the clueless USPTO:

"The foregoing description of the preferred embodiments of the invention is by way of example only, and other variations of the above-described embodiments and methods are provided by the present invention. For example, although the global server 120 is illustrated as a single device, the global server 120 may include several computers networked together. Although not described in great detail, the remote terminal 105 can synchronize copies of workspace elements stored on it with workspace elements of workspace data 123 stored on the global server 120. Components of this invention may be implemented using a programmed general purpose digital computer, using application specific integrated circuits, or using a network of interconnected conventional components and circuits. The embodiments described herein have been presented for purposes of illustration and are not intended to be exhaustive or limiting. Many variations and modifications are possible in light of the foregoing teaching. The system is limited only by the following claims. "

What is clear from that text is that the patent filer is claiming a monopoly - as it were - and is claiming the exclusive right to all monies deriving from anyone else's use of any methods even similar to those described in the Visto patent application - a patent application which can be compared to a mouse trap operating by principle of mouse enclosure, a principle so obvious that it is by no means susceptible to patenting at all.

ONLY THE SPECIFIC PHYSICAL PRODUCT CREATED BY VISTO SHOULD BE SUBJECT TO PATENTING AND NOTHING MORE.

Otherwise, patent protection becomes a means to reward the unworthy and the incompetent. For example, NTP had failed miserably in its own attempts to market its own technology. NTP was a business failure. To exclude such a risk of business failure, it has now surely become cheaper to file an overly broad patent, then to do nothing and to wait until someone goes to the trouble and expense of marketing and successfully selling a similar product, due to additional inventions and discoveries on their part. Then you just have to wait until millions or billions have been earned honestly by others and then swoop in and take the money away, as if the successful business had contributed nothing to the success. That is exactly what has happened in the case of RIM and NTP. Patent trolling has proven much more profitable than doing business honestly. The successful business is penalized. The business failure is rewarded. It is a despicable scam of gigantic proportions favoring those who can not, rather than those who can.

As written by Sandy Starr in Oct. 2002 in Patent problems: How intellectual property rights are used to stifle innovation:

"In the USA, and to a lesser extent worldwide, the number of patents granted has been rapidly rising. Between 1981 and 2000, the number of patents granted in the USA has increased from 71,000 to over 184,000, an increase of 159 percent. In the last five years the rise has accelerated, the number of patents granted has increased by over 50 percent, compared to an increase of under 14 percent in the previous five years. This increase appears to reflect growth in the intensity of patenting...rather than a 50 percent increase in the number of inventions." [emphasis added]

That's correct. By 2004, the number of patent applications to the USPTO had jumped to 355,000! Your average man has quickly seen the USPTO-provided opportunity to make a quick undeserved buck at the expense of successful ventures.

Patent trolls have discovered that making profits as normal business undertakings is far less profitable and much more uncertain than to file patents for obvious methods and then to claim patent rights over any kind of methods used by others which bear any remote similarity to the methods so filed. Many companies are in fact willing to pay off patent infringement claimants, even if the claims are worthless, rather than to go to court, which involves great expense. So, says the patent troll, why work and produce something of value for the public good when one can get more for oneself for much less effort through the beneficent arms of the clueless USPTO?

The NTP settlement of $612 million dollars against RIM has to be regarded as one of the greatest money scams ever perpetrated, thanks to the USPTO and a clueless judiciary.

To this we can add the following thought about what constitutes an invention or discovery for purposes of patent filing:

A rejected patent can be resubmitted with patent filing "corrections" suggested by patent examiners to make the patent claim "patentable". In such a case, a good argument can then be made that it is then not the patent claimer at all that has "discovered" the allegedly patentable "invention", as embodied in the patent claim, but rather the USPTO's own patent examiner who is in part the "inventor", without whose patent filing corrections the patent would in fact not be patentable. That which is ultimately "filed" is not that which was initially allegedly "discovered".

When that is the case, something is seriously wrong with the patent law system. If a discovery is a patentable discovery, i.e. a real "invention", then that is clear to all. If, however, the legitimacy of a "discovery" rises or falls on technical, scope or content aspects of application wording suggested by USPTO employees to patent claimants (EOLAS is a good example here), it is then clearly just a simple rip-off on the public.

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