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The USPTO: Patenting logical conclusions since 1790

Posted: , by Michael H.

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The USPTO: Patenting logical conclusions since 1790
We've noticed that when we post a story about a new patent application, the conversation seems to always devolve into the same issues: whether or not a company is a bully, and whether the patent is just stealing an idea from somewhere else. The trouble is that these views miss the point entirely. And, to be clear, although we will use Apple as an example multiple times in this piece, it is only because Apple's patent library has garnered something of a mythical status in the tech world. There are plenty of companies that game the system just like Apple, but that is the point: these companies are playing within the system, so we don't blame them for the state of things. Apple has simply been one of the best at taking advantage of a broken system. Apple's patent filings and subsequent lawsuits are a symptom of the problem with the patent system, they are not the cause, nor will eliminating them necessarily be the solution. We need reform of the whole patent system. 

When we pose this argument, people often jump to the "gun metaphor" and ask if guns kill people or people do, but we find this to be a flawed analogy for the situation. Because ultimately people do kill people, but guns make it much easier, and its far better to take the gun away than it is to stop murder all together. Some companies will always be greedier than others or be bullies with litigation, that's part of the nature of the people who run the company, but they can only go so far within the law, and right now the patent laws allow far too much room to be bullies. We find that a better way to think of it is when someone is sick, in this case the patent system. When someone is sick, is it better to give them cough drops to fix their symptom, or is it better to give antibiotics to kill the infection? The patent system is sick, and while companies like Apple do take advantage of that, they are just the symptom of the illness. If you don't like what those companies do, you can boycott them, but that won't fix the problem. The problem is that we need patent reform, and the majority of the things that government representatives hear is from lobbyists hired by those companies, not from angry consumers like you. So, a far better way to see change in companies gaming the system is to fix the system, and that requires more than boycotting brands, it requires contacting your government representatives. 

We've talked about the building mobile patent war in the past, and we've mentioned in various articles how the US Patent and Trademark Office is horribly overworked, underqualified and ill-designed to deal with the glut of technology patents that it has been seeing. In this piece, we want to expand on those ideas, and try to boil down our argument to the basics. So, let's start with the most basic block of the overall patent argument: what is an invention?

Invention vs discovery and redesign

Discovery is finding something that already exists in the world. Redesign is altering how that existing object looks, feels or operates. Invention is creating something completely new. This is a piece of the puzzle that very few people stop to consider, but the truth is that there have been extremely few true inventions in the history of human existence. No one invented the wheel, but one of our ancestors discovered how round rocks could roll, and redesigned that basic technology for use in moving larger objects. No one invented the hammer, but someone discovered how to redesign a smashing tool so we wouldn't break our fingers so much. 

The other part of it is that invention has a connotation of being a purposeful act. We give power to inventors, and hold their intellect in high regard. This is the basis of the idea of "intellectual property". We feel like we need to protect the ideas that we come up with, because we feel like we own them and that they were created because of our own personal genius. Intellectual property and patent law is to a large extent an exercise in ego building. But, many "inventions" happen to a large part by accident, and almost no inventions are created in a vacuum. The misconception has been built because we never see the process of creation, we only see the end product. We don't see the myriad hours of studying past work, testing, failed hypotheses, abandoned projects, and surprise outcomes. 

For example, the microwave as an appliance began life in 1945 because Percy Spencer noticed that a candy bar in his pocket melted when he was near a multi-cavity magnetron. John Randall built the multi-cavity magnetron in the late 1930s in order to use those microwaves could be used for better radar systems because of a shorter wavelength. Randall's work was built on that done by Theodore Ionescu, whose work was built on the work done by Albert Hull and others throughout the 1920s in developing the first two-pole magnetron by discovering that the interaction of electrons and a magnetic field can create microwaves.  And, we can keep going back to who discovered how to create a magnetic field, etc. The point is that no one really invented anything, they just continued the work of others to create more and more efficient ways to create a magnetron, and then Percy Spencer accidentally came across a way to use microwaves that hadn't been considered before. So, imagine that Albert Hull had sued Ionescu and Randall and all those who came after and built upon his work because he owned the original patent on the basic magnetron. How would that have changed all of the innovation that came afterwards?

We don't have the benefit of hindsight right now, but everything we see falls into the same idea. The work on facial recognition systems began in the mid-1960s by Woody Bledsoe, Helen Chan Wolf, and Charles Bisson in an effort to be able to match mug shots to other images. Over the years, that work has been expanded upon and improved, and now we have face matching technology in all sorts of systems from iPhoto to Facebook and Google+, and facial recognition systems in our cell phones for silly reasons and slightly productive reasons like device security and organizing multiple users. And, companies like Google own patents on those systems (via the PittPatt acquisition) and some like Apple are attempting to patent those systems, with only the most subtle differences between each filing. 

Determining patent-worthiness

That's one of the biggest issues with the way the USPTO works is it's nearly impossible to truly determine whether or not a patent is worth being granted. The fact of it all is that the USPTO is simply over-worked. There are far too many patent applications and not enough people to review them, and on top of that, the reviewers that the USPTO does employ are often not knowledgable enough on the specifics of a filing to be able to make an educated decision on the patent. Because of this fault in the system, it has become almost common practice for similar or identical patent filings to all be approved, which will lead to a wasteful court battle and ultimately many of the patents being thrown out.

The USPTO is trying to address this issue by crowd-sourcing patent review through the Peer to Patent project. If run properly, this system will allow experts in various fields to volunteer their time to review patent applications and weigh in on examples of prior art, or the overall worthiness of the patent itself. This would be a great way to tackle the issue of too many patent applications and not enough reviewers, but it won't really get to the issue of how patent applications themselves are being designed. 

The way that patents are designed has made it incredibly difficult for anyone - the USPTO, courts, etc. - to determine the worth of a patent, because not only are there multiple patents issued for the same product, but the language of patents has become increasingly broad and vague. Patent applications have shifted from being specific descriptions of physical systems to more and more being theoretical designs on systems that don't exist, and may never exist. And, the patents that are specific do so to differentiate from all other identical patents. The iPhone's slide-to-unlock feature is not a novel idea, as we'll cover in just a bit, but the patent was granted because of the specificity that this mechanism is somehow fundamentally different because it is on a touchscreen device. 

This means that on one end, we have multiple patents that are essentially identical, but for one small feature, and on the other end, patents are less examples of actual inventions or innovations, but vague descriptions used as blanket protection on the chance that a product makes it into the open market. Worse still is the effect this has had on software patents. As we've mentioned before, it used to be that software patents were treated similarly to literature copyrights: you could patent specific lines of code, but not the overall idea of the product. Now, patents are often granted with absolutely no working code provided, just descriptions of systems. To push the literature analogy, this would be like Shakespeare copyrighting the idea of star-crossed lovers that ends in tragedy, rather than the actual words he wrote in Romeo & Juliet

The reason this is a terrible way for the system to work is because there are always common themes and forms that products take. Smartphones all take the form of essentially rectangular objects with rounded corners. This isn't because Apple's iPhone is a marvel of design (although it is in many ways). It's because: 1) rectangular objects are the most efficient for displaying blocks of text (ie. paper, screens, etc.), 2) elongated objects fit better in the human hand than square or round (just ask Apple about its hockey puck mouse), and 3) rounded corners on solid objects are less likely to poke your leg when in your pants pocket. No one is copying anyone else, its just a matter of finding the most logical and efficient form for the product you are making. 

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posted on 30 Dec 2011, 17:04 6

1. Sackboy117 (Posts: 178; Member since: 17 Oct 2011)


This article is like God speaking out to us.

posted on 30 Dec 2011, 21:09 5

15. cheetah2k (Posts: 871; Member since: 16 Jan 2011)


WTF? If this was God, he would be telling Apple "Do unto others as you would have others do unto you...." [Matthew 7:12]

posted on 30 Dec 2011, 17:20 2

2. taz89 (Posts: 2014; Member since: 03 May 2011)


does it make it RIGHT to take advantage of a broken system even if others are,this example is extreme but if you can make a bigger profit by getting 3rd world countries to make clothings and we know this happens,should a clothing manufacturer consider using cheap labour just cause everyone else might be doing it.....

posted on 30 Dec 2011, 17:26 2

3. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


It doesn't matter if it's right or wrong because stopping that behavior won't fix the problems. It's a waste of time and energy to be angry at Apple when the problem is with the patent system as a whole

posted on 30 Dec 2011, 17:36 1

4. taz89 (Posts: 2014; Member since: 03 May 2011)


shouldnt be these companies who should help reform it and not take advantage of it..if its not them then who will,as you said ''US Patent and Trademark Office is horribly overworked, underqualified''

posted on 30 Dec 2011, 17:57 1

7. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


Some companies are trying to reform it. Google has been one of the forces behind the crowd-sourcing patent review push, not to mention open-source is the perfect alternative to a patent system. But, these are also companies in a capitalist society, so it's perfectly natural that some would rather go the other way and exploit the system, which, unfortunately, is their right within this system.

posted on 30 Dec 2011, 18:11

8. taz89 (Posts: 2014; Member since: 03 May 2011)


i guess until this actually starts to hurt the consumers there is unlikely to be any change....still dont agee with the fact just cause its legally right doesnt make it right.business is business and in a capitalist society its all bout the money even for apple.

posted on 30 Dec 2011, 19:23

11. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


I never said it was right to do. I just said that we don't really have any way to change what Apple does. We do have the power to change how the USPTO operates though. So, if we stop complaining about Apple in comment boards and start complaining about the USPTO to our congress reps, it would be a lot more helpful.

posted on 31 Dec 2011, 04:52 2

22. chapizzo (Posts: 116; Member since: 13 Sep 2011)


First of all great article. I always feel more enlightened when i read your work. Keep up the good work.

However, it seems like what you are saying is that we shouldn't blame anybody as long as what they do is within the bounds of the system even if that system is clearly broken. What happened to doing the right thing because we have some moral integrity? Common sense tells me that if you can use the system to hurt others, they too could use the same system to hit back at you. Then where would it end? Obviously some dark place we all don't wanna go.

So yes, the system needs fixing. But no matter how hard you try, it will never be perfect, there will always be loop holes that can be exploited. And you bet, the patent troll will always find them and try to take advantage. That's unless they too revise their practice. So both the system and those that use it need some revision.

posted on 31 Dec 2011, 10:33

27. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


I'm not saying Apple is blameless. I'm just saying that people who don't like how Apple does business probably doesn't buy Apple, and that's the best we can do on that front. But, when people see behavior like that from Apple, the farthest they think is to boycott Apple or to complain on a message board, and no matter what, that is only fighting the symptom, not the problem. Get angry at Apple all you want, but if you really want to see them stop, call your congressman and put in a word for proper patent reform.

posted on 30 Dec 2011, 21:03 3

14. kanonk (Posts: 14; Member since: 21 Dec 2011)


I bet you like the "guns don't kill people, people kill people"

posted on 30 Dec 2011, 22:26 3

16. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


People do kill people, but guns sure make it a lot easier

posted on 31 Dec 2011, 01:31 2

20. RazaAsad (Posts: 100; Member since: 24 Nov 2011)


People had been killing people long before the guns. I do agree that a USPTO is an un-intellectual organizations authorized to give intellectual rights, but abusing the system by apple doesn't because of that doesn't make your users stop commenting about Apple. At least we consumers have the right of voice. A gun is not always intended to offend, that is also for the defense. This is "intentions" what matters. I disliked apple and know what? I have started to hate it the way it has gone to the cheap level. I wonder how some people defend Apple's attitude, "you are holding it wrong" attitude, the false we "invented" attitude. It doesn't matter what manufacturer abuses the system, I call that abusing consumers. Android supporters at least know they will not be abused and fooled by "The Apple". Apple makes good product and has the potential to make even better but I hate the way they make people fool.

posted on 30 Dec 2011, 22:43 3

17. roscuthiii (Posts: 1873; Member since: 18 Jul 2010)


I agree to a point Michael; it's the patent system itself that's broke. However, that should not exonerate the intent or actions taken by the abusers. Do you prosecute the weapon, or the one who wielded it?

posted on 31 Dec 2011, 10:37

28. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


Everyone jumps to the weapon/gun metaphor, but it's a flawed analogy. A better analogy is when you get sick, do you reach for cough drops or do you get antibiotics? The patent system is sick, but everyone focuses on the symptoms of the companies that abuse the system instead of looking to fix the illness itself.

As I said before, get as angry as you want at Apple, and boycott them if you like, but just know that won't fix the issue because the patent system is still broken.

posted on 31 Dec 2011, 11:01 1

31. taz89 (Posts: 2014; Member since: 03 May 2011)


agree some company's will want the patent system amended(Google and am sure there are more) and some love it the way it is(apple and more) but i still stand by the fact just cause something can be abused doest mean it should be used...i unsderstand we shouldnt blame apple but in this time and moment it is apple which has HUGE influence is taking advantage which is wrong,you argue this isnt about right and wrong but the fact is they are wrong in what they are doing and what annoys many people is people will defend apple for doing it saying things like ''if the system is broken then why not''. if you use that attitude in every other aspect of your life you will end up doing a lot bad in life than good.obviously stopping apple and co is not going to reform the system but the company's taking advantage are not making it any easier.

posted on 30 Dec 2011, 17:51 3

5. tacohunter (Posts: 408; Member since: 06 Nov 2011)


Well I said a month ago to someone don't blame the company blame the patent system.

I already thought of the idea how hard technology patents could be granted. When I read some patents. I hardly understand from the first time, I need to read it more then 5 times before i can understand it and know how it works completely. I can clearly understand the trouble. You need to have the neccesary knowledge about it first. And then theirs the problem: will other companies have a similiar patent. I can imagine how hard it can be to find that. They should take more time to examine the patent.

There's no denying technology is build on the work others did before you. It's true for example without nokia the iphone wouldn't had existed like it does now. Just like the windows pc we know from today would have looked a lot different and ancient if apple didn't existed. And visa verca. Bill Gates worked on the macintosh. And he used some of the info for his software. Also the mouse interface became more used for the idea with a computer. And apple used some ideas from microsoft for their software. And it's good those two software looks different now and yet they used a lot of each other and made it better wich made a giant step for technology.

posted on 31 Dec 2011, 04:57

23. chapizzo (Posts: 116; Member since: 13 Sep 2011)


wow taco you finally make a point i can agree with. This is good.

posted on 31 Dec 2011, 05:57

24. tacohunter (Posts: 408; Member since: 06 Nov 2011)


Thx but i'm not taco. it was just a name to make the joke happy huntings, so far my plan.

posted on 30 Dec 2011, 17:52 2

6. gallitoking (Posts: 4690; Member since: 17 May 2011)


like a said.. dont hate the player.. hate the game

posted on 30 Dec 2011, 18:12 2

9. taz89 (Posts: 2014; Member since: 03 May 2011)


would you be saying that if iphone was blocked in the US.

posted on 30 Dec 2011, 18:46 1

10. gallitoking (Posts: 4690; Member since: 17 May 2011)


I will give you two answer.. 1st is my answer... I dont care i have my iphone so.... the 2nd one is.... I dont care I have my iphone.. lol.. ok now serious.. that will never happen... Apple is too powerful and the government wouldnt do this to their people.. it would create chaos... Homeland Security color will be raised to Orange...

posted on 31 Dec 2011, 03:15 2

21. blackrose (Posts: 48; Member since: 15 Apr 2011)


You are a waste of space

posted on 31 Dec 2011, 10:39 1

29. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


he may be hyperbolic, but he's right. the iPhone is too much of a cash cow, and Apple is too good at the patent game for it to ever get banned.

posted on 31 Dec 2011, 11:08 1

32. taz89 (Posts: 2014; Member since: 03 May 2011)


i know iphone will NEVER get banned in the US but i was just asking him on his ''dont hate the player,hate the game'' attitude,would he still feel the same IF iphone or any other product he loved was banned due to the useless patent system...its all good while you can still get the products you love but i guarantee anyone who was unable to purchase something because of this ''hate the game''crap would not feel like that.

posted on 30 Dec 2011, 20:02 5

13. networkdood (Posts: 6328; Member since: 31 Mar 2010)


Gallito's answer tells you everything you'll need to know about Gallito.

posted on 30 Dec 2011, 19:28 4

12. Hildy (Posts: 33; Member since: 23 Nov 2011)


What is needed is a return to the original USPTO requirement that an application include a working model or prototype. I (or some company, possibly named for a fruit) shouldn't be able to describe a holodeck and patent it without actually building one first.

posted on 31 Dec 2011, 00:25 2

18. SlimSoulja86 (Posts: 642; Member since: 03 Nov 2011)


There is nothing I can add, this article says it all, BUT, (as much as I luv u Apple, the truth needs to be told) blocking innovation with patents it's not fair at all. And the blames here goes to Apple, not USPTO, this is like a policeman shooting someone he hates and claim he was attacking him, so in this case the policeman is abusing his authority, so we can't blame the system( I hope my example makes sense, ofcos to iDiots who defends Apple all the time without thinking outside the box will not understand it, Apple fans should stop bn so ignorent and stop defending a company that is blocking innovations, cos at the end of the day, it's us(yes including us Apple fans) who will suffer at the end of the day) imagine if (it's just an example) Android can better Siri, both Apple and android user will benefit, this simply means so minds are better than one(in this case two companies)

posted on 31 Dec 2011, 00:32 2

19. SlimSoulja86 (Posts: 642; Member since: 03 Nov 2011)


And I think Apple is doing all these stupid things knowing that we (Apple fans including myself) will defend them and support them even when they are wrong. I've realized all over the net, that Apple fans will come up with any excuse to defend Apple even there is a problem that needs to be fixed, only the manority of Android fans will decent Android while the majority will complain about bugs found in Android, This is something Apple knows, and theyre taking advantage of it, until all Apple fans wake up from Apple lalaland, like I did, maybe just maybe Apple will know they are not the gods of techno world or heaven, that they cant do as they please and sue as they want, whatever the case

posted on 31 Dec 2011, 06:47 1

25. Lwazi_N (Posts: 205; Member since: 23 Jun 2011)


This proves my point. Apple invented nothing!

posted on 31 Dec 2011, 08:33 2

26. Slammer (Posts: 1127; Member since: 03 Jun 2010)


Michael,

Your time and effort into this composition, has painted a pretty picture of the fragmentation within the patent system. It successfully conveys that the system indeed, must undergo a teardown, rebuild and revitalization to regain control of what is patentable and what is not.

However, I must also state that your site is here to accomplish several things:

1) To acquire the latestest news/updates on technology and products throughout the wireless industry.

2) For individuals to not only learn from this news, but also to freely offer their own informative knowledge of said news through experience and inside details.

Lastly,

While the site is in place to utilize one and two, the forum is an open source for debates and criticism on topics related to such news.

With this said, I must openly point out a misconception. There are others such as myself, that have the ability to multi-task. To not only praise good deeds as well as vehemently voice our discontent on these forums, but also divide our time and direct the same thoughts to companies, organizations Etc. So while some of us may come here to condemn or commend, we don't stop there.

Many of us have spent countless hours through days, weeks and months writing to such entities in hopes to fight for or against the practices.

Many of us relentlessly fought to break up the ATT monopoly back in the 80's. We won. We fought to overturn the merge of ATT/Tmobile. We won. We did the same to abolish the greedy two dollar "Convenience Fee". We won yet again. Many of us have already approached the USPTO with our concerns. We must hope that these are realized.

I feel lucky to have the years and experience of the wireless era and companies to be able to come into sites like this and share my views or opinions.

So on the topic at hand,

I don't like Apple. I don't like what they stand for. Their DNA is to control. To be self-regulatory through proprietary offerings. It is their way or the highway. They will skimp on anything they can while touting other's conceptual ideas or culminations as their own to perceive state of the art, high quality products. To prop up these advances as their own innovation in order captivate unsuspecting consumers by savvy marketing. They are making a mockery out of the patent office. Using it as a tool to stifle competition.

If we can use your forum as an informative base to educate other forum members, don't you agree this would bolster the necessary arsenal to combat Apple's true intent
while simultaneously compiling view points of individuals to present to the USPTO that change needs to be made?

So to say we are not complaining to the right source, leaves me wondering.

Unless Phonearena is highly advocating Apple or misrepresenting its own thoughts on the USPTO, the power of your media based site is a powerful tool to practice your own preachings. Fight the USPTO with the views expressed within the comment section. Yes?

John B.

posted on 31 Dec 2011, 10:53 1

30. MichaelHeller (Posts: 2693; Member since: 26 May 2011)


You certainly have a point, but I think you may go too far. Given what I've seen in our message boards, you're far more likely to be able to use this space as a rallying point for other like-minded people than you are to change anyone's mind. As with most tech forums on the net, people get entrenched in their viewpoints. As you can see with the comments on this piece, people still come out swinging at Apple, but as I've said many times already, there is only so far that those complaints can go.

You can get angry at Apple, you can complain to Apple, but Apple is just a symptom of the problem. Here at PhoneArena, I feel like the best we can do is inform the public and try to point people towards an option that they might not have considered. While I certainly admire the work you've done to support your beliefs, and maybe I'm being cynical, but I feel like you are in the minority. I feel like those who read our site and don't like what Apple does to game the patent system are likely to complain in our threads, and boycott Apple products, but that's about as far as they will go. And, that isn't far enough, because as I said, Apple is just taking advantage of the real problem. The real problem is the USPTO and how it works, and the best way to deal with that is not to boycott Apple, but to contact government representatives. When you contact them, referencing this article may help your cause, and I hope it does, but dealing with the USPTO is still the best way to see change.

posted on 31 Dec 2011, 13:01 1

33. Slammer (Posts: 1127; Member since: 03 Jun 2010)


Well let me ask you this Michael.

I don't mean this in a offensive way, but:

Have you expressed your concerns to the Government officials as I and many others have? Or are you just using your site to offer an opinion in the same manner as you suggest others may be using it? Your editorial is very keen and well thought out. As I previously stated, it portrays the USPTO as it currently stands. These are your very intelligent words and opinion on the subject, not mine. Why should I be the one to submit this as ammunition? Even though I agree with your report, me presenting your opinion would not be taken seriously. To be effective, it must come right from you. Any thing less, just incubates the breeding ground for a more targeted group. This would counter-productive and a waste of great informative input.

So to move ahead:

Being cynical is a personal attribute and I get the sense that you may NOT have chosen the route I as others have. Being cynical is not a bad thing, but it can have its disadvantages. In this case, it limits the cause. It does not promote positive action towards possible righteousness in consumer advocacy(especially in the wireless industry). You have devoted too much time and research to disagree with me on this. You know all too well how unprotected consumers are in this private sector.

BTW, one does not need to be in the majority to make a point, one just needs to be part of a large enough minority percentage for Government agencies or companies to listen to and take it seriously.

John B.

posted on 01 Jan 2012, 02:56

34. ladyhaly (Posts: 106; Member since: 17 Jan 2011)


Out of all the things I've read for the past year including the first day of 2012, this is the one article that makes complete sense. I wholeheartedly agree with everything... I'm still angry at Apple for doing what they did, being patent bullies, but your statement/suggestion to look at the bigger picture and focus on the real solution is truly enlightening... and correct. What is happening is there is a huge loophole here and companies in a capitalist system who have no morals whatsoever (and companies even though they are an entity are not expected to have them) will take advantage of them--- and we can't go off and punish them for it because the situation allowed them the freedom to do such a thing.

This is because in legal terms, a sense of what is right or what is wrong is not the concern; rather, if something is not written as a crime, then it is not wrongful or illegal. Now, this whole discussion of mine is kind of encroaching on the territory of ethics, but that doesn't matter. What matters is that we should get to the root of the problem/oppression and perform the solution.

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