Building a better drain trap

I’ve been critical, here, of patents that seem to have been issued for ideas that don’t represent much innovation (most recently, this one), extending existing “prior art” only a little, or not at all. Many patents, particularly for computer software, describe things that are neither novel nor non-obvious.

Contrast that with this product (pointed out on BoingBoing recently), which really seems to be a neat, original, useful, idea that is a significant step beyond the prior art.

Of course, you know that’s got to be patented. And, indeed, a quick search at the US PTO came up with U.S. patent number 7,107,634, “Method and apparatus for cleaning a conduit” (and there’s an follow-on application pending that adds the “self-cleaning” feature).

Of course, this isn’t computer software, and part of my point has always been that physical inventions are easier to distinguish and to justify than software mechanisms are. When you can actually build it and look at it, you can readily show how it improves on what’s been made before... and it’s also easy to see if it’s substantially the same as something else.

Lots of people in the Boing Boing comments section are criticizing the design of this, and perhaps they’re right — perhaps this is a seemingly good idea that won’t work out in practice. But it sure looks interesting and useful... and it’s certainly an example of the sort of innovation the patent process was meant to foster.

Why we have patents

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;

— United States Constitution, Article I, section 8

Yesterday, I commented about a specific patent that I don’t think should have been issued. I picked on it only because it’d just been brought to my attention; I think a very high proportion of the software patents that are out there should not have been issued. Most of them fail to meet the criteria for patents, specifically the requirements to be novel and non-obvious.

But I ended yesterday’s post with this statement: “That’s not what the patent system was meant for.” I want to take a longer look at that now.

At the top of this post is the paragraph from the U.S. Constitution that empowered Congress to create the patent system we have today. Look at what it says, because it tells us what the patent system was meant for: it was expressly meant to “promote the progress of science and useful arts”.

The patent system was not meant to protect companies’ investments, nor to create revenue streams, nor to support cross-licensing agreements — those are side effects of the implementation. It certainly was never meant to enable patent trolls, who patent things they never intend to realize or market, only to sue for patent infringement when someone else develops one of them into useful technology. That, too, is a side effect of the implementation, but is quite the antithesis of what the authors of the constitution had in mind.

When the Supreme Court made their 2007 decision — a unanimous decision from an ideologically divided court — they were going back to what the constitution intended: promoting progress. Allowing exclusive rights to minor, incremental changes in technology, as the patent system does now with computer software methods and systems, makes it extremely costly to push the limits of what we have, in order to develop something more grand.

Now, do you want to see some real innovation, something that’s not just a small increment, no ordinary innovation with predictable results? Try this recent TED talk by Pranav Mistry, from the MIT Media Lab, who developed a prototype system he calls Sixth Sense, which... well, go watch the TED talk. It starts off with some straightforward ideas, and gets more fascinating as it goes.

And if you watch it through to the end, when Mr Mistry answers a few questions, you’ll see that his approach is to make the programming available as an open source project.

That will promote the progress of science!

Dissecting a patent

Around two and a half years ago, the U.S. Supreme Court unanimously limited patents for the “predictable results” of “ordinary innovation.” At the time, my comment on that spoke full agreement:

I’m thrilled to see this decision. I’ve personally reviewed many computer software patents that I’ve considered to be obvious extensions or combinations of existing technology, and I’ve shaken my head and said, “Geez, who decided that this patent should be issued?” Maybe there’ll be less of that now, and maybe we’ll actually have to do some real innovation to get something patentable.

Alas, no. Two and a half years later, the U.S. Patent and Trademark Office is still issuing patents for the predictable results of ordinary innovation, obvious combinations of existing technology. The IBM Research blog has just highlighted a recent example. Of course, they’re presenting it as an example of an innovative patent by an IBM researcher... and I don’t mean to criticize the researcher, here: the system described in the patent is a useful one, the pressure to patent is high in large companies, and this is a well written patent.

It’s just not a particularly striking bit of innovation.

U.S. patent 7,610,187 has just one independent claim, a claim to the following method (paraphrased here):

1. A client requests content from a content feed (such as RSS or Atom).
2. The system identifies the client’s desired language (perhaps from a tag in the request, or perhaps it’s been pre-configured).
3. The system retrieves the content feed.
4. The system translates the content from its language into the desired language.
5. The system gives the translated feed to a feed aggregator.

From my point of view as a user of this, I would subscribe to a feed without regard to its language (perhaps I tell my feed reader to include a news feed from Le Monde). When I see the items in my feed reader, they’ll have already been translated into English for me. Machine-translated, of course, and I have to be aware of the limitations of that, but it’s still pretty useful.

Let’s look at what’s new here.

Machine translation, of course, has been around for a long time — decades, at some level, and on the web since pretty close to its beginning. Babel Fish was the earliest one on the web that I’m aware of; there are many more now.

Proxies that manipulate data have been around for a long time as well, also decades. Just looking at it from the point of view of web servers and services, we can find proxies that filter objectionable content, proxies that reformat content for different devices (make pictures smaller and rearrange layout to send to your mobile phone, for example), proxies that turn one data encoding into another, and so on. That’s not new.

In fact, here’s a patent by AT&T from 1999, U.S. patent 5,875,422, “Automatic language translation technique for use in a telecommunications network,” which does exactly this, in different words. It covers speech or text; communication by telephone, computer, or fax; addressing through telephone number or IP address; language preferences obtained in various ways; and so on.

What’s new in the IBM patent are the content feed and the feed aggregator (reader).

Is that significant innovation? Or is that “ordinary innovation”, showing “predicable results” of normal technology development? It’s clear to me that it’s the latter: it’s just a matter of where the data’s coming from and where it’s going after it’s translated. What’s stopped us from adopting this sort of thing before now is the quality and reliability of the translation, not the lack of innovation in putting the pieces together.

There are natural-language-translating web proxies available, which will basically behave as though you got the web pages and then told Google to translate them for you. Such a web proxy would now, if it were used to retrieve an RSS feed, be infringing on this patent. Of course, before this patent was issued, that same proxy infringed on the AT&T patent from 1999. And so it goes.

What this says is that the 2007 Supreme Court decision has had no effect on the U.S. Patent and Trademark office. The decision’s effect will be limited to court cases — if, for example, someone should challenge this new patent on the basis that it merely patented ordinary innovation — but these sorts of patents will continue to be issued, and their existence will continue to frighten away those with other, novel ideas, who are unwilling to risk being on the wrong side of a legal notice.

That’s not what the patent system was meant for.

Patent not pending

A couple of weeks ago, the US Supreme Court handed down a unanimous decision limiting patents for things that come from “ordinary innovation” and that “yield predictable results”:

If the combination results from nothing more than “ordinary innovation” and “does no more than yield predictable results,” the court said in a unanimous opinion, it is not entitled to the exclusive rights that patent protection conveys. “Were it otherwise,” Justice Anthony M. Kennedy wrote in the opinion, “patents might stifle, rather than promote, the progress of useful arts.”

Because most inventions combine previously known elements, the court’s approach to deciding what sort of combination is so “obvious” as to be ineligible for patent protection will have widespread application. The result will be to make patents harder to obtain and defend.

“Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,” Justice Kennedy said. He added that such patents were also undesirable because they might deprive earlier innovations of “their value or utility.”

Of course, patents have always been meant to be for novel, useful, and non-obvious things, but that standard has been applied in a very lax manner that's resulted in a plethora of patent-infringement lawsuits that have tied up the court system, caused inconvenience to consumers, and cost some companies a great deal of money. The Supreme Court is now saying that apart from all that, this lax enforcement of the standards for granting patents also “retards progress” — something that many of us who deal with these sorts of things have known for a long time.

The problem, of course, the part that retards progress, is the worry that as soon as you start trying to put technology together to create something new, a patentholder will sue for patent infringement along the way, before you get to the new and interesting bits. Some patents are so general that it's hard to imagine how to get past them to the really innovative stuff.

I'm thrilled to see this decision. I've personally reviewed many computer software patents that I've considered to be obvious extensions or combinations of existing technology, and I've shaken my head and said, “Geez, who decided that this patent should be issued?” Maybe there'll be less of that now, and maybe we'll actually have to do some real innovation to get something patentable.

More on patents

I recently commented on patent injunctions, and I realize that it's not at all clear, in discussing that, why the whole question of infringement of computer software patents is so fraught. To consider that, we have to look at some aspects of anything that's patented: the patented technology must be novel, non-obvious, and useful.

Novelty

Simply put (somewhat over-simply, but it's OK for this discussion), this means that you're patenting something that hasn't been done before. If you devise a new way to design a bicycle tire brake, let's say, you might want to patent it — particularly if you think it's better than what's already in use, and hope that you can make money by being the only manufacturer to sell it, or by licensing it to others. It's pretty clear how this works for physical things (though there are certainly arguments there too), but with computer software it's much less clear whether what we're doing is truly novel. We can look at what's out in the marketplace, we can see what's been published in journals and at conferences, and we can see what others have patented, but we're still not sure.

What's more, it can be very hard to tell (particularly from the external behaviour) whether two computer programs are "doing the same thing", because we often are not patenting the result, but, rather, the internal mechanism (in patent terms, the method and system). There may be many ways, for example, to deliver email to wireless devices, and perhaps you hold a patent on one method. If I sell a product that delivers email to wireless devices, how can you tell whether I'm using your method, or one of the others?

Non-obviousness

In the patent world, "obvious" has a somewhat more specific meaning than it does elsewhere: something is obvious if it could readily have been independently devised by someone "skilled in the craft". Again, this is easier to judge with physical things, but even there, much latitude is often given. Often, the fact that someone has not done it is used as an indication that it's non-obvious (but see "usefulness").

Who can say whether a computer algorithm or a method of approaching a task in a computer program is "obvious" or not?

Usefulness

This one's pretty clear, but, of course, quite subjective, both in the physical world and the computer world. Whether that bike brake is useful or not is a good example: clearly, a bike brake is a useful thing... but is this design useful, given the other designs that are out there? And things that have no other apparent use might be useful for their entertainment value. The US Patent and Trademark Office tries to err on the side of acceptance, but they have long banned perpetial-motion machines from the patent process, for instance, on these grounds.

With software, it's pretty clear whether, say, a spreadsheet program is a useful thing to have (though some will debate that too, surely), but it's much less clear whether that particular method you have of doing something in the guts of the spreadsheet program is a useful improvement to the art. Anyway, this one doesn't have much effect on the issuing of software patents; it seems that the PTO will issue pretty much anything, and let the market and the courts sort it out.

Structure

A patent is structured into two primary parts: the embodiment and the claims. The embodiment describes the invention in prose, usually has diagrams (they're not strictly necessary, but the PTO seems to like them), and is there to explain to someone "skilled in the art" how this invention could be built. The claims are the key elements; these are the basis for enforcement. Pick a claim from your patent. If I do what that claim says — everything that that claim says — then I have infringed on your patent. But it gets tricky. If your patent for the bike brake says "wrap the wire three times around the shaft" and I use four wraps, I have not infringed. Had your patent said "wrap the wire at least three times around the shaft," then you'd be suing me for infringement. Too bad you didn't write your claims to be broad enough.

On the other hand, claims that are too broad will result in your patent's not being granted. A claim of "wrap the wire around the shaft" might be denied because the existing technology (the "prior art") wraps twice around. It's a careful balance, trying to maximize the coverage and yet be specific enough that you can get the patent.

I probably don't even have to say, here, that it's very hard to write software claims that achieve the right balance. Most that I've seen are really too broad, and yet, again, the PTO errs on the side of issuing the patent, and lets the challenges and the settlements take care of the rest. Happily, it doesn't usually matter: companies do a lot of cross-licensing, and large companies don't usually go after the small guy who's not willfully stealing technology, and what you see in the news are the few cases where this stuff breaks down. But it's a pretty strange world.

Patent injunctions

The recent patent-infringement cases involving Research in Motion and eBay have brought patent issues to many people's attention. I'm not interested in going into the specifics of the patents and claims in these cases, but would like to comment on the question, highlighted in the eBay case but present in both, of injunctions. (I should make a particular point of noting that my employer is very big on patents, and that what I say here has nothing to do with the company's thoughts on the matter.)

The issue is this: the court has decided that company X infringes on company Y's patent. As part of the process, the judge now issues an injunction forbidding company X from continuing to do that. Meanwhile, they're all deciding how much money should change hands, settling on licensing, and so on. And that may be fine if company Y is also selling the product or service, and the judge has stopped company X from illegally competing with it while they sort out the terms. But suppose company Y is not selling it. Suppose company Y is not selling anything.

There are companies that are just parking patents and waiting for someone to violate them (sometimes knowingly, but often not; knowingly infringing on a parent carries treble damages), but they do not, themselves intend to use the technology they've patented. Even if they do intend to use it, they might not now be doing so. In this case, company X is not depriving company Y of any revenue, and their continued use of the patented technology causes company Y no further harm. Moreover, if (as in the RIM case) consumers have no way to switch to another provider, the injunction will cause significant damage to the innocent public.

It's in these cases that I believe the injunction does far more harm than good, and judges should not issue such injunctions. Specifically, judges should only issue injunctions when the continued use by the defendant causes the plaintiff further harm. In any case, when an agreement is reached (or penalty imposed by the court), the plaintiff will be compensated for the use of the patent.