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.
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.