|October 15, 2012|
Previously published on October 10, 2012
My favorite radio show, This American Life, recently aired an episode entitled “When Patents Attack.” The gist of the episode is that, at least with respect to software patents, the patent system in the United States is discouraging rather than encouraging innovation. Specifically, through several stories about inventors, businesspeople, and patent licensing firms, “When Patents Attack” makes the argument that the existence and enforcement of thousands of very broad software patents makes it more difficult than it should be to do business in the high-tech sector, particularly for smaller companies and startups.
As I have explained in previous LightSwitch articles, licensing firms (also known as non-practicing entities or, less charitably, patent trolls) are companies that own patents but do not utilize the inventions covered by those patents. Instead, licensing firms find other companies that are using the inventions and negotiate licenses with those companies (i.e. get those companies to pay them a fee in exchange for a license to continue using the inventions). As you might imagine, negotiating a license often involves threatening to sue for patent infringement. As host Alex Blumberg characterized the actions of a licensing firm that acquired a patent covering certain online photo-sharing technology: “[I]nstead [of becoming Flickr,] they waited for someone else to build Flickr, and then they sued Flickr.”
The first half of the show describes this problem from a small company’s perspective and is full of stories about enthusiastic and innovative start-up companies having their dreams dashed by letters from mysterious patent trolls alleging infringement and threatening to sue. The second half of the show is directed to the broader effect the increase in software patent litigation is having and describes how tech-sector heavyweights like Microsoft, Apple, and Google are spending billions of dollars to amass patent portfolios to assert “defensively” against licensing firms and competitors that may sue them. While “When Patents Attack” makes for a very interesting listen and raises a number of thought-provoking questions, it presents some contradictory arguments and ultimately fails to propose any solutions to the problem it highlights.
Regarding the contradictory arguments, the show first argues that enforcement of software patents by licensing firms is particularly unfair because the software patents being enforced never should have issued -- they cover things that lots of companies and institutions were doing (and even seeking to patent) when the “inventors” filed their patent applications. If this is in fact true, and the show makes a convincing case that it is, there are serious doubts about the enforceability of these patents. Unfortunately, the legal effect of the questionable validity of these patents is never addressed. Instead of addressing this question, the show interviews two software engineers who further put into question the validity of software patents. Stephan Brunner, the first inventor, claims the patents he worked on in the past are full of “mumbo jumbo, which nobody understands, and which makes no sense from an engineering perspective whatsoever.” Under federal law, however, all patents must describe an invention “in such full, clear, concise, and exact terms as to enable any person skilled in the art... to make and use the same.” 35 U.S.C. § 112, first paragraph. In other words, a patent cannot be “mumbo jumbo” and must make sense from an engineering perspective. Testimony from the inventor that a patent is meaningless would certainly assist a defendant in showing the patent is invalid. (Unfortunately, the two people that may understand Mr. Brunner’s patent better than anyone, Jason Dunham, who examined the patent at the USPTO, and an attorney at Campbell Stephenson, LLP, who prosecuted Mr. Brunner’s patent application, are not interviewed in the show.)
The second software engineer interviewed, Adam Cohen, explains that the patent he helped obtain while working for a software company “is really meaningless because everybody that has an internet website, basically almost today, uses the stuff we patented to make their website work.” Mr. Cohen fails to explain why his software company is not now enforcing its patent rights against the companies that are practicing the technology the patent covers. Of course, Mr. Cohen may have intended to make the point that the other companies were practicing the technology before his company “invented” it and that a court would find the patent invalid if his company sought to enforce it. Neither Mr. Cohen nor anyone else in the show actually makes this argument, however. While the show hammers home the position that these broad software patents should never have issued in the first place, it fails to explain why none of the defendants in the infringement lawsuits are successfully challenging the patents in court and obtaining rulings that the patents are invalid. In other words, the show fails to reconcile its argument that enforcement of these patents is unfair with the inconsistent argument (accompanied by comments from inventors) that software patents are meaningless “mumbo jumbo.”
“When Patents Attack” also fails to propose any solutions to the problems it highlights and, in fact, fails to explain satisfactorily what caused these problems. Although the hosts explain that software has only in the past fifteen years or so been deemed patentable (previously, copyright protection was the only way to protect software), no one explains why that fact would necessarily lead to the glut of overlybroad software patents in existence today. Could it be that, when software was deemed patentable, the Patent Office was simply unprepared in terms of examiners with software expertise to examine properly patent applications directed to software inventions? Could it be that, because software had historically not been patentable, when software patents were allowed, there were no issued software patents at the Patent Office, making it difficult if not impossible for examiners to do a proper search for prior art? (It is easy to set an Olympic record in a sport that is in the Olympics for the first time!) For either of these reasons, examiners may have mistakenly allowed large numbers of overlybroad patents.
And, least one commentator has suggested the Supreme Court should take decisive action and invalidate software patents. See posting of Timothy Lee of Forbes, (Sept. 28, 2011). Alternatively, maybe nothing needs to be done. If most of these overly-broad software patents are ten or fifteen years old, the problem may dissolve over the next five or ten yeas as the “bad” patents expire. Finally, the America Invents Act became law since the program aired and it will be interesting to see whether any aspect of this new law will alleviate the problems the program highlights.
Notwithstanding that “When Patents Attack” leaves some substantial unanswered questions, it is an entertaining show and well worth a listen.