The USPTO: Patenting logical conclusions since 1790

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. 



1. Sackboy117

Posts: 178; Member since: Oct 17, 2011

This article is like God speaking out to us.

15. cheetah2k

Posts: 2288; Member since: Jan 16, 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]

2. taz89

Posts: 2014; Member since: May 03, 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.....

3. MichaelHeller

Posts: 2734; Member since: May 26, 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

4. taz89

Posts: 2014; Member since: May 03, 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''

7. MichaelHeller

Posts: 2734; Member since: May 26, 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.

8. taz89

Posts: 2014; Member since: May 03, 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 is business and in a capitalist society its all bout the money even for apple.

11. MichaelHeller

Posts: 2734; Member since: May 26, 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.

22. chapizzo

Posts: 116; Member since: Sep 13, 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.

27. MichaelHeller

Posts: 2734; Member since: May 26, 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.

14. kanonk

Posts: 14; Member since: Dec 21, 2011

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

16. MichaelHeller

Posts: 2734; Member since: May 26, 2011

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

20. RazaAsad

Posts: 100; Member since: Nov 24, 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.

17. roscuthiii

Posts: 2383; Member since: Jul 18, 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?

28. MichaelHeller

Posts: 2734; Member since: May 26, 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.

31. taz89

Posts: 2014; Member since: May 03, 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.

5. tacohunter

Posts: 408; Member since: Nov 06, 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.

23. chapizzo

Posts: 116; Member since: Sep 13, 2011

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

24. tacohunter

Posts: 408; Member since: Nov 06, 2011

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

6. gallitoking

Posts: 4721; Member since: May 17, 2011

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

9. taz89

Posts: 2014; Member since: May 03, 2011

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

10. gallitoking

Posts: 4721; Member since: May 17, 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...

21. blackrose

Posts: 48; Member since: Apr 15, 2011

You are a waste of space

29. MichaelHeller

Posts: 2734; Member since: May 26, 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.

32. taz89

Posts: 2014; Member since: May 03, 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.

13. networkdood

Posts: 6330; Member since: Mar 31, 2010

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

12. Hildy

Posts: 34; Member since: Nov 23, 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.

18. SlimSoulja86

Posts: 660; Member since: Nov 03, 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)

19. SlimSoulja86

Posts: 660; Member since: Nov 03, 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

25. Lwazi_N

Posts: 205; Member since: Jun 23, 2011

This proves my point. Apple invented nothing!

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