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Debunking the ‘make the patent examiners work harder’ myth

Patents: There’s a good discussion over at Joi Ito’s weblog on software patents.

Unfortunately, there’s a persistent, and popular, fallacy that crops up quite frequently in these discussions, and does so here in the comments:

‘much of the processing of patents has been, to use understatement, deficient. An invention that is ‘silly or obvious’ will likely not pass the approrpiate legal test – if this test is applied by people who understand the inventive technology …. while I agree with most of your observations about deficiencies, I fail to see the logic in your solution (to simply outlaw these kinds of inventions).’

So, what the commenter is saying is that the patenting of software and business methods would be acceptable, if only the ‘inventive bar’ was raised so that trivial patents were not granted.

The problem with this is that:

  • it ignores the fundamental problem with these kinds of patents, which is
    • that they patent ideas instead of physical inventions.

      A parallel would be to allow the patenting of plot-lines in fiction, meter in poetry, or combinations of ingredients and cooking methods in recipes. These are all ideas, transformed into output ‘products’ by performing them as input on a set of hardware (books, cooking equipment), in the same way as software patents and business method patents are abstract ideas that operate on input, generating output, when implemented on a CPU. So, should they be patentable, too?

      Patenting of physical designs is fundamentally different from patenting of abstract ideas in one key way. Physical designs must function correctly under real-world physics, and this requires extensive up-front design and prototyping, before they can be turned into mass-produced products.

      Abstract ideas can be developed mentally, and the up-front work required before the idea can be put down on paper is trivial by comparison.

      Consider these EPO patents: EP0807891 (Sun’s ‘shopping cart’ patent) or EP0689133 (Adobe’s ‘tabbed palette window’ patent). The up-front work required to devise these applications is trivial to anyone with a rudimentary knowledge of UI design; the hard part appears to be writing the legalese, and I understand the patent lawyers take care of that part. ;)

      Compare with US patent D0450164, a design patent for a Dyson washing machine. The level of detail, and extensive specifications, is massive, and it’s clear a lot of work had gone into the process before the patent application was filed.

      • In addition, the commenter assumes that extensive prior art searches really do take place. From what I’ve heard from patent applicants, and from what I’ve observed in the range of granted software patents, this is cursory at best, and generally performed by the patent lawyer and the examiner, not the applicant themselves.

        I’ve even observed a few patents where prior art, cited in the patent, implemented exactly what was claimed!