So says Rob Pegoraro in today’s Washington Post.
It’s not that NTP never turned its ideas into a product. The patent system doesn’t reserve success to owners of factories and laboratories; the guy living in his parents’ basement is allowed to sell his idea to people with those resources.
No, the problem here is simpler. There are too many bogus patents getting handed out.
Pegoraro also notes that RIM is hardly an innocent in the patent wars. The potential injunction has gotten loads of press coverage; Howard Bashman has roundups here, here, and here. See also Point of Law, Nov. 25, and Overlawyered’s Blackberry litigation coverage.
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Wherein “bogus” means little more than “inconvenient for Rob Pegoraro.” Seriously, nothing in his article even attempts to indicate why intellectual property in software form should receive less patent protection than mechanical devices, drugs, or other patentable items. Yes, it can be difficult to distinguish the boundaries of a patent claim on software, but that’s true of any patent.
The true absurdity here is that US law permits these claims to be litigated simultaneously in two separate arenas. If the system were rational, the PTO proceeding would be integrated into the federal court case in some way, rather than playing out separately in a contradictory and confusing way.
No, bogus meaning, “trying to patent peanut butter and jelly sandwiches”. (Yes, that was attempted in the last 5 years). There are many software versions of this (“1-click” ordering, for instance).
The author in this case did not specify why THIS patent should be considered absurd, but he did mention that many other NTP patents are being overturned on review (which, from what I’ve heard of them, was expected).
The basic problem here is the paten-ability of things that aren’t “inventions” in the traditional sense.
It seems like software patents have produced an unusually large number of what I consider “bogus” patents, that is patents meeting one or more of the following criteria:
1) Originality is completely lacking. Software and “mathematical algorithms” used to be unpatentable, so techniques that were well known in the 1960’s and 1970’s aren’t in the patent database. Too often, the patent examiner is unaware of the literature outside of the patent database, and so approves something that is just a rediscovery, at best.
2) The only “originality” lies in doing long-established business methods with a computer. IMHO, it takes more than that.
3) The applicant originally dreamed of something that looked like it might be useful, but didn’t know how to do it. He filed an application that was initially rejected, then kept it in limbo through repeated amendments and appeals for a decade or two until others, who had the same idea independently, finally made it practical. Then the applicant filed one more amendment to make the patent resemble the other’s work, got the patent through the PTO, and proceeded to sue the people who made the invention work.
This would be like Arthur C. Clarke applying for a patent on communications satellites in 1946, about 15 years before rockets that could put them into orbit were available, keeping it alive but unapproved until 1960, then amending it to cover transistor circuits as well as vacuum tubes – and expecting to collect royalties until 1980. Allowing such things does not encourage real inventions, rather it discourages them.