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Comment by akersten | Hacker News Reader

I don't understand why software patents are allowed to exist. There's nothing novel about software. Every software patent I've ever read is "a system for X" where X is something generic like "taking photos with multiple cameras and sharing them over the internet." You haven't made anything novel there, you've taken a logical product of interoperable building blocks and put an artificial legal barricade around it.

It would be like Target patenting "a system for selling goods to consumers" and suing any other retailer with a checkout.

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My (layman) impression is that the "non-obviousness" requirement is supposed to deal with this problem. But it seems like the patent office is (was?) poorly calibrated for obviousness. I'm sure the lawyers writing patents intentionally make it hard on the PTO, but that must be true in every other field too, and I assume the PTO can solve that problem.

The problem is that so many brilliant inventions are obvious once they've been explained. Because of this, it's very hard to describe what is and isn't obvious.

The closest analogue I could imagine would be a test in which your patent includes a problem statement and a solution which solves that problem, and the test for obviousness is to present the problem statement to a group of skilled professionals and see if the solution they craft for that problem statement matches the patent, and strike any claims they propose.

This is a very unreliable test and a lousy and expensive standard, but it's the best I've got.

Actually, the Supreme Court has laid out some objective tests for nonobviousness, the so-called "Graham factors" [0]: (1) commercial success; (2) long-felt but unsolved needs; (3) failure of others.

It's my opinion that in order to sue for infringement, a patentee should first have to convince a court that their invention is nonobvious, using objective tests such as these. The PTO is poorly placed to guage nonobviousness, for several reasons. First is simply the sheer amount of knowledge required to be able to judge what is obvious and what isn't. Second is the incentive structure at the PTO: examiners are rewarded for closing applications one way or another, not for rejecting arguably obvious patents. Third is the fact that some relevant evidence, namely the commercial success of the invention, simply isn't available yet at application time, and won't be until months or years later.

So the situation we have now is one where the courts tend to defer to the PTO on obviousness, but the PTO isn't set up to do a good job judging it in the first place.

For all these reasons I think it would be better if the burden of proof were on the patentee to prove nonobviousness, rather than on the PTO or defendants to prove obviousness; and if that proof had to be given in a court before an infringement suit could even be filed. This system would be very efficient given that closer scrutiny would have to be applied only to those patents whose litigation was seriously contemplated, a small fraction of all patents issued.

IPR is a step in this direction, certainly, but I'm not sure it goes far enough.

[0] https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.

Can’t work if the patented solution has become common knowledge within the profession

Drat, that's a good point. The patent office could use the test as part of the review, though.

Patents protect how a problem is solved not what is being solved.

Several valid patents can be directed at the same exact problem as long as they solve it using different techniques.

Yes, exactly. That mechanism must be non-obvious. My suggestion is that if I pose the problem meant to be solved to a random group of professionals and they quickly come up with the mechanism for solving it that an applicant is attempting to patent, then that mechanism is very likely obvious.

Take as an example the "Drinking Bird." Imagine the inventor has applied for a patent. You get some materials engineers and a physicist or something in a room, describe a device which resembles a bird and continuously sips water, and ask them to devise a way to build it in a few hours. If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.

That's part of it. Other factors that tend to show non-obviousness include being the first to have the idea to make the gadget in the first place; serving an unmet need; combining steps/parts that convention suggests should not be combined; commercial success with the invention; the combination producing surprising results; and so on.

Proving non-obviousness is well trod ground in litigation and in patent examinations. It is often the hardest criteria to get over.

Though typically obviousness can be proven by finding two or more printed publications that in combination disclose the claimed invention.

In this example, the novelty in the claim at issue is related to using a transfer criteria that is a subject identification of the image...wherein the subject identification is based on a topic, theme or individual shown in the image. This was added as the final amendment to get the patent over the prior art the examiner cited.

If one can find evidence in [edit: one or more] printed publications that this was going on before 8/8/2008, the patent can be invalidated easily. Otherwise, it will be a slog of litigation.

> If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.

That seems pretty specific ... what would be an analogous software scenario?

Problem: customers find ordering things online to be cumbersome and time consuming. We need a for repeat customers to place orders as simply as possible.

Programmers/UX designers brainstorming session includes several ideas, including this one: What if we remembered customer addresses and credit card info and just had a single button that said "buy"?

Patent denied.

> But it seems like the patent office is (was?) poorly calibrated for obviousness.

My guess is that it's not necessarily that people at the patent office have a hard time telling if something is obvious, so much as that the incentive structures at play are all wrong.

I imagine that, if a patent reviewer denies a patent application, they potentially have a fight on their hands when their decision gets challenged. Whereas, if they approve it, any argument ensuing from that decision will be the court's problem. It's a classic "keep your head down and don't cause any trouble for yourself" situation.

Assuming I'm right on that guess, I'd further guess that it's also a classic "I'm not paid enough for this shit" situation. I don't have any friends at USPTO, but I have friends who work in other government offices, and, from what they've said, I would assume that that is a deciding factor in a large percentage of decisions that are being made by rank-and-file government employees across all branches. And I doubt patent clerks are any more likely than any other kind of clerk to be getting paid "dealing with this shit" money.

I worked at the USPTO in the distant past. You're pretty close

Obviousness requires a reputable, dated source stating something like "I have combined these two elements" or "Someone should combine these two elements". While magazines or trade literature are acceptable sources, the prior art search is typically conducted primarily through the patent archive. It's a slam dunk if you have two patents with claims that cover the same invention and some way in the text to tie them together. You can't generally rely on your 'expert opinion' that it's obvious because you say so.

Patent examiners are also promoted and retained primarily based on the volume of patents they process. IIRC the bar is something like one or two patents processed a day. That would mean 6-8 hours of reading the patent, researching prior art, writing the response, reading the attorney's response and writing your final disposition, as well as any appeals. Regardless of size of patent.

All this for mid 5 figures to low six figures in NOVA

Just ripe for abuse by rent seekers and walled garden enthusiasts.

Sounds like that office could use a few opinionated/retired software developers in it.

Yeah, it's super easy to make even the most mundane thing sound like space-age technology: "a process for systematic analysis of textual corpus to identify and correct erroneous deviations from accepted linguistic norms" - in other words, spell check. We can't rely on overworked examiners to decipher pseudo-technical bullshit to determine if the behavior of a software system is sufficiently non-obvious and specific. The entire concept of a software patent must be forbidden.

I'll go one step further and say that the whole concept of patents is not only unfair, it's ineffective at what it supposedly tries to achieve (fostering innovation).

For every monetary incentive of developing something new, there are 10 obstacles because of patent law. Patents are a hindrance more than an aid.

Maybe so, but the alternative effectively means innovation has zero value. Why would I bother researching how to make a new product when I could just copy an existing one? Oh sure, I could tweak a thing here or there to make sure it's not exactly the same, but entire R&D divisions would just be cut from most corporations if the only value to innovating was that you got there first and ended up having (at most) a year before some other company disassembled your product and recreated it, selling it just above cost. Furthermore, if this was common practice, consumers would know that waiting a while would always lead to a knock-off product being available at huge discount, so even during that initial lead time sales would be impacted.

your quoted example is a "what" not a "how"

There are probably 100 or 1000s of issued patents related to spell checking -- they can solve same problem as long as how they solve the problem is different.

What you're calling a "how" can be a list of simple "what"s.

> In an electronic word processing system for creating and editing a document, the document comprising a plurality of sentences, a combined spelling and grammar dialog box for displaying both spelling and grammatical errors in one of the plurality of sentences in the document comprising:

> a rich text edit command (RTEC) field for displaying both spelling and grammatical errors found within the sentence and editing the sentence;

> an error title line for indicating whether the error displayed in the RTEC field is a spelling error or a grammatical error;

> a suggestions list box for displaying a suggestions list, the suggestions list comprises a fist plurality of suggestions operative for correcting the spelling error found if the error type displayed in the error title line indicates a spelling error, or the suggestions lists comprises a second plurality of suggestions for correcting the grammatical error found if the error type displayed in the error title lined indicates a grammatical error;

> a plurality of common command buttons operative for correcting both errors in the spelling and in the grammatical composition of the sentence displayed in the RTEC field.

https://patents.google.com/patent/US6085206A

In other words: an editable sentence, the description of a spelling or grammatical error, a list of suggestions to fix the error, and some buttons to apply a suggestion, skip, etc.

That specific combination of UI elements was perhaps new in 1996 (as were most GUIs), but not what I'd call an "invention" so valuable to society that it deserves 20 years of protection from free market competition.

The actual spelling and grammar analysis code might be worthy of protection for a year or two, but they probably lifted most of that from some college kid's paper.

Sorry to bother you with the late reply.

For about 10 years the US had a judge made "flash of genius" standard that was part of determining patentibility. It was eliminated by the US Congress in 1952.

I haven't done the research, but I imagine the flash-of-genius standard was repealed because it is impossible to objectively quantify. Current non-obviousness analysis incorporates some things that might be evidence of a flash of genius without going there, such as, market success, unmet need, and so on. But usually non-obviousness is determined if one cannot find subject matter in printed publications that one of ordinary skill in the art could combine to make the claimed invention.

You say that as if spell check isn't a Hard Problem...

The problem is that they will happily issue patents for <obvious thing>-with-a-computer, then another one for <obvious thing>-over-a-network, then again for <obvious thing>-over-wireless.

I think the real problem is that the patent office gets fees for approving patents, and no negative feedback for approving bad ones. The natural result is that they externalize the cost of disproving bad patents to the population at large. Do the people who approve overturned patents even hear that they've been overturned? If not, then there's not even the emotional cost of being told they've done a bad job.

If whenever a patent was overturned, the Patent Office had to pay the court costs of the one who managed to overturn it, they'd be a lot more circumspect about what they approved.

> poorly calibrated for obviousness

They should move way to the other side on the scale of obviousness. Patents should be there to protect investments, not to stake out ideas bright and not so bright practitioners can stumble upon. In my opinion only ideas that necessitated a few man-years of work to be discovered should be patentable with onus on inventors to prove nonobviousness. I wouldn't be surprised if only pharma patents would survive only because expensive trials are needed.

Re: the patent office is (was?) poorly calibrated for obviousness.

Captain Non-Obvious works there.

> It would be like Target patenting "a system for selling goods to consumers" and suing any other retailer with a checkout.

This sounds like that ridiculous time when Amazon patented the concept of buying something from an online store by clicking a [singular] button.

https://en.wikipedia.org/wiki/1-Click#Patent

I think they are generally fine. There just needs to be a shorter window, say 3 years and they need to be non-transferable. This removes the patent trolls and people just buying patent portfolios (IBM) but still allows a new small company to invest in product without having their better funded competitor just stealing it the day of launch.

Thanks for the perspective. I understand the sentiment, but I fear Mickey-Mouse'ing of that 3 years. If that company is wildly successful, they'll have the funds to lobby for extension after extension on that 3 year expiration. Just like how many Disney properties were supposed to enter the public domain in 19xx but are still off-limits (yes, copyright law is a different domain, but the concept translates). On principle, I think there must be a hard line that the system does not work this way - "we know it's bad but maybe it will only last a few years" isn't a compromise I'm comfortable making.

I get your reticence. I think you have the hardline of it is done three years after submission with NO exceptions. No extensions, no derivative works. I think we are generally agreeing just that the law must have teeth or it will be bypassed or revoked. It is a fair point but we have to assume some partial rationality when proposing solutions or their can be none.

I don't know about non-transferable - if IBM are better placed to capitalize on my invention than I am, I think it should be fair to sell it to them.

But I'm certainly in favour of some use-it-or-lose-it clause that lets a "portfolio" age quickly.

But in that case IBM can license the invention from you, which is also the idea of a patent. And instead of negotiating a selling price you would negotiate a licensing price.

Does that realistically make a difference? The only difference between selling it for $x or leasing it for $(x/3) (assuming GP's proposition to dramatically reduce the term), is whether they want exclusivity, whether they can back out of a lease early), and who shoulders the costs of defending it. At that point you've made little difference to how patents affect the industry, you've just increased the administration for the inventor.

It would mean IBM couldn't sue someone for violating it.

I think examiners (and non-technical folks who don't think much about it) get fooled by "pseudo-novelty". Progress moves fast in the technology field, especially with computing. Every year things that were impossible last year become possible through simple incremental improvements. If you're not paying attention the new uses might actually seem novel rather than just the obvious applications of the better machine.

Edit: Not sure why that's controversial... Some time around 2009 I finally got my parents hooked up with cable internet vs the DSL they had before and wowed them by playing a movie over the internet from my home media server. I didn't invent "a method and process for transmitting a full length movie over a network without quality degradation", but my mom sure thought so. I did some "computer work" and a "novel" new ability emerged.

Edit: Changed whats in () to something less offensive.

> examiners (and non-technical folks who don't think much about it)

Patent examiners all have degrees in science or engineering. See, for example, this job listing: https://www.usajobs.gov/GetJob/ViewDetails/545074300. They're also organized into art groups which become experts in narrow fields of inventions.

> simple incremental improvements.

Almost every patent issued is an incremental improvement of some other invention. By "simple" you probably mean non-obvious, which is one of the requirements for patentability.

> I did some "computer work" and a "novel" new ability emerged.

That's a different kind of novelty. It's not patentably novel if anyone, anywhere in the world, ever did it publicly before you.

> Edit: Not sure why that's controversial...

> (and normies in general)

I don't think it would be controversial had you not condescendingly referred to "normies".

Ah. Thanks. Doesn't sound off to my ears but that makes sense. I'm going to try and soften that while I can. Thanks for taking the moment to answer.

FWIW, Wiktionary notes it as "usually derogatory", and to my ears it makes it sound like you are saying you are inherently better than them (which I'm sure is not your intention). A word best avoided in my opinion.

Galaxy brain is realizing that this has been the problem with all patents throughout history. The gap between theory and practice on patents is huge.

I kind-of-sort-of also feel this way about other patents, but in the spirit of specificity my particular sticking point is software.

Yeah, other patents are problematic, but at least patents of yore were more like "here's my design for a door hinge. Here's a diagram showing my specific implementation. There are many ways to mount a door and this is one I've invented and physically produced. Anyone else is free to create a different hinge mechanism."

A modern software patent version of that is "I thought of the idea of a hinge in my basement. They've existed for centuries but I'll be the first to file. No, I've never physically produced a single one. Yes, any implementation of opening a door infringes on my system-for-opening-a-door patent."

there are 1000s of hinge patents. Here is the abstract of one issued in 2015

"A hinge device for a door is provided. The hinge device has two hinge members which engage with each other and a hinge cap. A bearing with one or more tapered ends engages with the hinge members to allow easy opening and closing of a door attached to the hinge device."

https://patents.google.com/patent/US9290974?oq=hinge+2018

I opened up an old piano recently and saw a patent number inside. Looked it up expecting some cool piano technology and found out it was a 100 year old patent about putting the owners name on a bit of metal and then screwing that to the stringboard rather than the traditional method of casting in on the stringboard. The whole patent essentially comes down to using bolts to attach 2 bits of metal rather than using one.

Who is Galaxy Brain?

https://knowyourmeme.com/memes/galaxy-brain

The problem I see with (software) patents, is that they don't account for two individuals having the same idea on their own. Specially in todays quickly evolving society, something can become viable from one moment to another and there's room for several people to have an idea before the first one can actually implement it.

At this point, patent law doesn't protect any invention from being stolen, as it's supposed to, but instead denies people the right to sell their own original idea because someone else registered it first.

The main reasons why this seems to become more and more of a problem are a) globalization means patents have a much longer reach b) the increasing pace of technological advances makes it harder to be aware of every possible invention in a field and c) the increase in supporting technology makes even complex-sounding inventions trivial to implement.

With all those things in mind, my opinion is that the trade-off has tipped over the point of balance; it used to be that patent laws predominantly protected the rights of inventors from intellectual theft; these days, more than anything, it's abused to legally lock inventors out of selling their creations.

I'd say patent law, as a concept, needs a complete rework. It's just not fit for the 21st century anymore.

Think using voice control to turn on your toaster; it sounds like quite a task, but it becomes trivial by leveraging technologies like Googles voice assistance, IFTTT and some cheap IoT hardware.

I share the sentiment but I also realize that the only time I hear about software patents is when one of these outrageous stories make it to HN's frontpage. Maybe the system works well overall but we only hear about that tiny minority of patent trolls acting in bad faith?

I guess what I'm asking is: do some people around here have stories of software patents actually working as intended and protecting small innovators from software giants?

I think you don't hear about it often is because big companies have a cheaper outcome when settling for a fee.

Read any random software patent and see if you can understand what it covers and how to implement it. Then ask yourself if that method should be exclusive to someone for more than 20 years. Software patents effectively patent math, which is not supposed to be patentable. That's the problem.

New Zealand banned software patents a couple of years ago.

Don't you think that main problem is that it is allowed to get the patent without implementing it? So you can patent things like "filter photos by person" without having working face recognition technology that someone else might be researching. Basically, you can patent what someone else is developing and then collect the fees for it.

There’s a whole separate problem with software patents - it’s not a patent on an invention, it’s a patent on an idea and all possible implementations.

> There’s nothing novel about software

Well that’s not even close to true.

I think you're confusing the term "novel" with "impressive", "complicated", or "hard." Indisputably, there is software that checks those other boxes. But it's not novel.

Software is fundamentally a mechanism that maps inputs to outputs. We've had a similar mechanism for a while now, mathematics. And we decided that - as complicated as mathematical theory and equations can be, there is no justice making a particular instance of math a novel, patentable, encumbered creation. It's all a derivative of the concept of mathematical manipulation, same as all software is a manipulation of a state machine.

Saying "this particular combination of state transitions is novel" is non-sensical to me.

If that particular combination of state transitions has happened before, then it lacks novelty. If it hasn’t though...

A system for human locomotion involving the repeated repositioning of one foot in front of the other. Where's my money?

You have to include that boilerplate to satisfy approval requirements

The underlying elements of a computer : processor, RAM, input, networking are interesting systems to a patent examiner

Even though you want to talk about the thing in your head that does a very specific application describable in one line you have to include that systems stuff

Is this specific to software? Do you believe any patents should be allowed to exist? Anything I can create must necessarily be a logical product of smaller building blocks.

Should Carl Benz not have been granted a patent for the motor-car? Engines, wheels, and seats were not new.

Doing things "with a computer" should not be patent-able. The computer already has the inherent capability to do everything anyone could ever conceive of instructing it to do, because of mathematics.

Constructing new capabilities for a computer, or a novel physical device to interface with the computer to extend its capabilities, should be patent-able.

IMO, in what I see of this patent, the computer used is not novel, the wireless signal utilized to transmit data is not novel, nor are the cameras that communicate with the computer novel. Nothing of value was built.

..with a computer patents don't happen anymore.

Law evolves over decades or centuries. Computer related patents are very new to the scene (in law years). They are getting better but there are still some clunkers out there.

In other more mature industries like medical devices, autos (auto parts really), kitchen gadgets, fasteners, packaging, HVAC, etc., the patent litigation (including trolls) is fierce too and has been for decades.

Probably not. Government granted monopolies only make sense when there are government forced delays as in drug approval. And even there, there are a lot of problematic cases.

In addition to banning software patents, a positive step could be to prove that developing the patent required substantial investment and would not be feasible without the patent -- as is the case with (current) drug development and laws. That would at least raise the bar and burden of proof of social benefit to the one filing.

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