Tuesday, November 30, 2010

Trivial Patents are Killing Our Economy

I have been a software developer for nearly 30 years. During this time, I have seen the number of software patents and business process patents increase by huge numbers. Rather than protect innovation, as is the intent of patents, these patents create a minefield for business, strangling innovation and severely weakening our economy. Most software and business process patents do not cover inventions that took any major effort or investment to create. Many, perhaps most, are nothing more than the obvious solution to a specific problem encountered by a programmer or engineer during the course of solving normal, daily business problems. Since we do live in a changing, technological world, it is natural that there are new problems to be solved. Generally, for an experienced technician, these solutions to these problems are obvious or at least easily arrived at after only a small amount of consideration. Worse still, it does occur that some of these patents are issued to an entity that did nothing more than document an existing solution that nobody else had previously bothered to patent.

Unfortunately, it is easy for the patent applications for these "inventions" to expand to many pages of eye watering technical jargon that disguises their triviality. As a result, the Patent Office generally grants these patents that seem counter to the standards of patentability to any honest and only slightly experienced technician. The problem of the existence of these patents is obvious without much investigation. However, the scope of the problem is many times greater than is obvious, as these patents are seldom invalidated even when they should be. The reason for this is the huge expense and effort involved in fighting them. Most businesses are in business to do business and avoid litigation as much as possible. Generally, companies either waste time coming up with new, slightly different solutions, or simply resign themselves to license deals they should not have to suffer. Paying a license fee, even one that should not exist, is usually much, much less expensive than litigation. More importantly, these invalid but all too real license fees are a known cost, whereas litigation cannot be predicted in either the dimensions of cost or outcome. Unfortunately, this environment serves only to strengthen invalid patents, causing them to drag on an industry for years.

This issue has been on my mind for years, but recently I read this article:


In short, the problem being decided is what effect the discovery of previously unknown prior art should have during patent litigation. To me, it is shocking that previously unknown prior art should even come up in litigation. Rather, there should be an administrative process by which an entity that has knowledge of prior art can simply provide this information to the Patent Office. The Patent Office will then consider this new information, and when appropriate, terminate a patent that should not have been issued. It is a horrible drag on our economy that the courts are the only venue that can be used to correct for the existence of an invalid patent when a patent clearly should never have been issued in the first place.

In these difficult economic times, serious patent reform that limits patents to their intended purpose of wholly new and revolutionary innovations would go far to helping our economy. Businesses would not have to suffer the taxes of litigation or license fees for trivial patents. The most important benefit, though, would be that the attention of businesses could be focused on doing business rather than worrying about these trivial patents. I believe the effect of this would be a surge in true innovation and a huge boost to the economy.


  1. See: IBM Patents Checking a Box.


  2. Some of the comments on that one are quite funny.