The U.S. patent process imperils innovation.
April 19, 2004
When Microsoft and Sun announced their rapprochement this month, one tangible benefit to both was the resulting settlement of patent disputes. Like Cold War superpowers agreeing to reduce nuclear stockpiles, Sun and Microsoft have stepped back from their own form of mutual assured destruction. At their level, patent fights can have no winners—but every IT company craves a patent portfolio to put itself in, as it were, the nuclear club.
Like nonaligned nations scrambling to devise their own nuclear weapons programs, IT firms such as Apple, Amazon and Eolas have sought head-table status by pushing the limits of "novel, useful, and non-obvious"—the three-legged stool of patentability. Apple wants to patent the user interface of the iPod, Amazon claims to hold a patent on a way of using browser cookies and Eolas—in a rare but welcome sign of patent-office sanity—has just lost its patent on embedding rich-media objects in Web pages.
Patent applications such as Apple's 20040055446 make us want to say, "Oh, grow up." Apple claims to have invented the interface mode in which "a first order, or home, interface provides a highest order of user selectable items each of which, when selected, results in an automatic transition to a lower order user interface associated with the selected item." We saw this 25 years ago in VisiCalc, saw it improved in Lotus 1-2-3 and have since become accustomed to seeing it in almost every appliance with a display screen. Novel? No.
Patents such as Amazon's 6,714,926 inspire activists like the GNU Project's Richard Stallman to call for a boycott against the company. That patent's abstract begins, "A Web site system implements a process for storing selected data structures within browser cookies. The data structures may contain a variety of different types of data elements, including N-bit integers and other non-character elements." To us, this sounds like a description of what a cookie does combined with a description of what a data structure does. Nonobvious? No.
The patent-process malady may aptly be called a cancer: Its major symptom is uncontrolled, undifferentiated growth of a system that has wrongly measured its performance by the number of patents it grants. As technology cycles grow shorter, the current process takes too long and does too much; its flurries of ill-founded patents are invitations to enter a tournament in which the biggest litigation budget wins. Needed is better use of community expertise to winnow out meritless applications, followed by quick, authoritative approval of the worthy.
Too many patents, like too many weapons, make the world a more dangerous place for people who just want to get on with their lives—and perhaps even make the world a bit better by implementing and refining ideas. We urge industry, legislators and the executive branch to restore the U.S. patent process to its constitutionally defined purpose of promoting "progress of science and useful arts."
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