Russel Winder's Website

USPTO, wrong, as if proof were needed...

Paul Allen via his organization, Interval Licensing Inc., is currently suing Apple, Google, Yahoo!, and AOL, for some amount of money based on various patents including U.S. Patent Nos. 6,034,652 and 6,788,314. Looking at Groklaw, particularly this article, various stupidities of the case are highlighted. For myself, I find it incomprehensible that a patent system can provide monopoly to the invention of: information to a user in non-distracting ways that do not interfere with the user’s primary activity on a device such as a computer. It's not even a physical device containing a computing system that the claims are being made on, just the act of presenting information. So in the USA you can patent the display of information.

The folks at Groklaw are trained in USA law and far better commentators on this case than I am. I will therefore leave the detailed argumentation of how stupid this case is to them. I do however want to highlight something that, for me, proves the USPTO is not fit to operate as the government tool for granting monopoly.

Let's consider the difference of title and abstract between the 6,034,652 and 6,788,314 patents:


Indeed, the answer is they are exactly the same. The 6,034,652 patent was filed in 1996 and granted in 2000. The 6,788,314 patent was filed 13 days after grant of the earlier patent in 2000 and granted in 2004. So the USPTO believe it is right and proper for an organization to apply for a patent using exactly the same title and abstract as a patent that had just been granted two weeks earlier after a four year wait. First reaction has to be, well that is cynical behaviour by Paul Allen and Interval Licensing Inc. Second reaction has to be: USPTO clearly do not actually read the patents and check in any way shape or form for obvious similarities to earlier patents. Nor, clearly, do they check for obviousness, nor suitability for patent.

The only deduction, or even inference, from incidents such as this is that the USPTO exists only to provide jobs for patent lawyers, and to keep the patent courts full of business. Why is this a bad thing? Two reasons: firstly, it increases the costs of products to the end user since the costs to suppliers is increased by all the patent litigation undertaken; and secondly it stifles innovation by small players as they have to plan for potential litigation in patent court. Either of these is a reason to reform USPTO with respect to software and business patents, but put them together and the argument is undeniable.

Even if you are a believer in software patents, and I am not, I think they should be forbidden, you have to admit the current system is out of control, favouring only patent lawyers, and hurting everyone else. The current high profile Apple vs. Samsung case serves only to reinforce this. Mobile phone manufacturers and network operators compile massive software patent war chests in order to attack and defend against each other as a part of the performance of trade. When Apple sue in their own backyard, confident in having a positive jury, which provides the right decision for them, and then it is clear that the jury were biased and cheated, the whole corruptness of the system is brought into stark relief.

Who wins? The patent lawyers. Who loses? Everyone else. How can the USA government justify USPTO behaviour? Is it because most politicians are ex- lawyers?

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