The U.S. Patent & Trademark Office (USPTO) has been taking a lot of heat in
recent years over software patents. Sitting at the center of the
firestorm — and the patent process — is Nick Godici, the agency’s Commissioner for
Patents.
Entire Web sites, like The League of Programming Freedom and
FightThePatent.com, are devoted to
arguments against the patent process, as it stands today, and the patents they spawn.
Relatively new companies like Microsoft are joining a
patent arms race with IT patent leaders IBM , which holds
roughly 23,000 in the United States and 40,000 abroad, and HP , which has roughly 21,000 patents worldwide.
Patent hoarding is already spawning its own industry — patent clearinghouses,
if you will. This week’s edition of Newsweek highlights a company started
by Nathan Myhrvold, former chief technologist at Microsoft. His startup,
Intellectual Ventures, purchases and accumulates patents and patent
applications, though Myhrvold is quiet about what he intends to do with them
then. The company also hires scientists as consultants for “invention
sessions,” and submits patent applications on the most promising ideas, the
Newsweek article states.
The fear, of course, is that the patent process — and those capitalizing on
it — will stifle software innovation, a charge vendors and the USPTO
vehemently disagree
with. But big-name legal suits over technology patents in recent years
have got people wondering when and at what point absurd
patent claims will end.
Has the USPTO taken patents and intellectual property out of the hands of
inventors and into the patent portfolios of big business? Are companies
with no other purpose but to charge a toll on software patents creating a
dearth of new ideas?
Godici doesn’t think so, and he told internetnews.com why.
Q: Is the patent process broken?
Absolutely not. I think it’s pretty clear from what we see in the PTO — in
terms of the value of the patents that come out of our office — the fact that more
and more filings are made each and every year, the fact that many, many
organizations and companies have their value based on the intellectual
property that they own.
If you look at U.S. innovation, and you look at
industries where we lead, you’ll see a correlation between a strong
intellectual property system and those industries. So this rhetoric about
the patent system being broken and so on and so forth is really misplaced.
Q: And that includes software patents?
Absolutely. The bottom line is there is a lot of misunderstandings
about patents and that may lead to some of this rhetoric, but the bottom
line is it’s a pretty specialized area of the law and it takes experts to
understand the patentability — what the process is, how we determine
whether to issue a patent or not, how the prior art defines the scope of
coverage that an applicant is entitled to, and so on and so forth.
And what you get is a lot of people that look at the title of the invention or some
abstract or whatever and just come to these conclusions with respect to,
“how could the USPTO issue a patent” on such and such?” But they haven’t
actually looked at the legal scope of coverage; they’re more or less
looking at a broad concept that’s described in the patent as opposed to the
claims that define the legal scope of the coverage.
Q: What about the argument that software isn’t anything more than a
mathematic concept, an algorithm that shouldn’t be eligible as a patent?
I would say that’s a falsehood. Pure mathematical algorithms or something
that occurs in nature — those are excluded from
eligibility. What has to happen in order to be eligible for patentability,
and including the software industry, is that there has to be a concrete, useful
result from the invention that’s claimed. So, just some abstract idea or
mathematical algorithm would not be eligible for patenting. We don’t issue
patents for those types of things. There has to be some output, some
result.
Q: Many common technologies —
hyperlinking, the cursor — were in
standard practice before the ideas were patented. Isn’t there a way to
grandfather, or protect, those who used the technology before it was
patented?
If, in fact, the claimed subject matter was part of the prior art and out
there in some publication or document or in prior use, then we wouldn’t
issue a patent on it. We issue a patent that might have some very specific
method for using a mouse and people think we’ve issued a patent that’s going
to knock out the use of a mouse to control a computer. That’s simply not
so. You have to look at the scope of coverage that’s defined in the claims.
As far as software patents are concerned, I think if you look back —
depending on how you define software — the history goes back quite a ways.
When you’re looking at business methods, you look at the Herman Hollerith
[considered the father of modern automatic computation for patents on
storing information and the invention of the Type I Tabulator to read the
cards] patents on punch cards and at the turn of the [20th] century that
were the basis for IBM. A lot of people think we’ve just started issuing
patents on this type of technology in the last 10 or 15 years; that’s simply
not true. It’s been an evolution that’s occurred over a long period of time.
Q: Does the USPTO have the resources needed to review all the software
patents that come in yearly?
We have 3,700 patent examiners at the USPTO [and] we deal with roughly
350,000 applications that are filed every year. Now, are we adequately
trained, do they know the job and so on and so forth? Absolutely. They are
required to have an engineering or science degree before they come to the
PTO, and there’s extensive training before they’re given full authority to
make final decisions in an application. There’s about a four or five year
period where their work is reviewed.
Now, on the other hand, when you’re
talking about resources, the bottom line is that our resources are
controlled by Congress and the appropriations process. We’ve made our case
through the administration and in a strategic plan that, with additional
resources at the PTO, we could hire more examiners and do things to allow us
to get to the applications quicker and raise the quality even higher than we
see today.
Q: Is the spate of software patent court cases in the United States —
Eolas’ debated
plug-in patent — good for the IT industry or is it going to stifle innovation?
You use a word like “spate”; I mean, the bottom line is 1 percent of the
patents we issued are ever litigated and of that 1 percent, only 1 in 7 ever
go to final judgment. And when those 1 in 7 go into final judgment, 65
percent of those are held valid.
We issue in the neighborhood of 170,000 to 180,000 patents a year, and
the lifetime of a patent is 20 years from
filing. So there’s probably in the neighborhood of a couple million patents
that are live today. The fact we’ve got — I don’t know the exact number
of patents that are being litigated, but it’s such a small fraction — that
this rhetoric out there, again, about this spate of patents being litigated,
I just don’t see it.
Every important invention that’s worth a lot of money is going to come under
scrutiny, and there’s going to be two sides of the coin and so on. The
Wright brothers’ patent went through all kinds of litigation before it was
finally decided. There is always a challenge when there’s high value at
stake, and I think that’s as true today as it was yesterday and in the past. But
I don’t think that we’re seeing anything different than we’ve seen in
history.
