Patently Obvious

I’ve blogged before on the absurdity of our patent laws, particularly in the software and business method arenas. While most people assume that the entire structure of our patent system is purely governed by statutes, it is judicial interpretations and not black letter statutes have created much of the problem. Do you really believe that Amazon deserves the exclusive patent to “one touch” online ordering? It’s like patenting pushing an elevator button that moves a complex box of people up or down to a designated floor… at the mere touch of a button. But they got that patent, and it has been upheld by a court. Business method patents were created by the courts!

For those of you dealing at even shallow depths in the world of software creation, do you really think you can create a new application of any complexity without stepping on someone else’s generic or specific creation? Maybe even a few dozen such creations? New Zealand, home to digital innovator and cinema effect/animation giant WETA (the largest private employer in the country), has simply cast software patents aside.

The constitution (Article I, Section 8) created the enabling power to allow Congress to pass laws “to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries.” In a world where virtually everything cultural or scientific is derivative, what we have today instead is a body of laws that encourage holders of patents to stop innovation dead in its tracks. Patent trolls, named by the Obama administration as the bane of growth and creativity, still ply their trade with abandon, and big companies love suing each other to stifle competition and kill creativity. And now, even businesses outside of the tech sector are up in arms. Even with a new expedited process to allow challenges to Covered Business Methods (CBM Program), things still just ain’t right!

“In the last few years, patent litigation has become such a widespread problem that industries that traditionally had nothing to do with the patent system are demanding that Congress take action. The latest sign of that is a letter asking Congress to make it easier to invalidate low-quality patents.

“The letter is signed by some high-tech lobbying groups that have long been active on patent issues. But, surprisingly, the letter also drew support from distinctly low-tech sectors of the economy, including casinos, supermarkets, chain restaurants, airlines, and the printing industry.

‘It's important to recognize that the problem of patent trolls are no longer limited to technology companies,’ says Whit Askew of the American Gaming Association, which represents casinos and the manufacturers of gambling devices. ‘Over the last couple of years, we've unfortunately been bit by the patent troll lawsuit bug, where frivolous lawsuits have been filed against many in our industry.’

“These predominantly brick-and-mortar business groups aren't just demanding patent reform in the abstract. Askew and other letter signers are endorsing expansion of the clumsily-named ‘covered business method’ program, which provides an expedited process for challenging patents at the U.S. Patent and Trademark Office (PTO). That's significant because expansion of the CBM program has drawn the ire of some patent-rich software companies, including Microsoft, IBM, and Adobe.” Washington Post, October 28^th. And these biggies have tons and tons of money to spend to the lobby their way to dominating all the middle little businesses that get crushed by these indiscriminate steamrollers.

“‘Companies need an effective alternative for challenging validity [of patents] outside of the courtroom,’ the letter argues. The CBM program ‘gives threatened companies a substantially less expensive way to challenge low quality patents. Other programs for challenging patent validity at the PTO do not allow the PTO to consider whether the patent is abstract, vague, or too broad,’ which are common problems with patents used by trolls, the letter argues.

“Industry groups that signed the letter say they were motivated to do so by a dramatic increase in the frequency of frivolous patent lawsuits. ‘We are now seeing [real estate] brokers receive demand letters for use of common technologies like scanner-copiers and website alert technologies,’ says Gary Thomas, president of the National Association of Realtors.

“‘I'm a food lawyer,’ says Erik Lieberman of the Food Marketing Institute, which represents grocery wholesalers as well as supermarkets. ‘Members bring us issues that impact them. A couple years ago they start coming to me saying 'look this entity we've never heard of is sending us a demand letter asking us for $300,000 or $500,000 claiming we're violating their patent.'’” The Post. But in a world where might makes right, where rich companies are allowed to spend any amount of money pressing their cause to Congress people with palms outstretched, bolstered by ignominious Supreme Court decisions like Citizens United, what chance do the little guys really have?

I’m Peter Dekom, and it really is time to level the playing field and make the bad man stop!