The battle against stupid software patents is on

Patent trolls extort millions from developers and entrepreneurs, but help is on the way from the EFF and the Supreme Court

How dumb are all-too-many software patents? "Spectacularly dumb," says Vera Ranieri, an attorney for the Electronic Frontier Foundation (EFF), an advocacy group for freer flow of digital information. There was that patent on "scanning to email" and one on the confirmation screens you see when you've completed an online transaction, to name just two.

Those patents are so silly it's hard to take them seriously. But you should. Predatory trolls holding preposterous patents suck millions of dollars from the pockets of entrepreneurs who don't have the time or the money to fight in court. So Ranieri, a young lawyer with a degree in math and computer science, has launched a humorous blog entitled "The Stupid Patent of the Month," in an effort to make an arcane, and frankly boring, subject more accessible to the nonlawyering public.

[ Simon Phipps tells it like it is: Why software patents are evil. | Cut to the key news for technology development and IT management with the InfoWorld Daily newsletter, our summary of the top tech happenings. ]

"We wish we could catalog them all, but with tens of thousands of low-quality software patents issuing every year, we don't have the time or resources to undertake that task," she says. Instead she'll poke fun at the really bad ones while she makes a serious point: the need to continue the slow process of fixing our broken patent system.

What passes as a patent innovation: 'Do it with a computer'
For August, the EFF has nominated U.S. Patent 8,762,173, titled "Method and Apparatus for Indirect Medical Consultation," which was granted in June. Here's how it works:

  1. Take a telephone call from patient.
  2. Record patient info in a patient file.
  3. Send patient information to a doctor, ask the doctor if she wants to talk to the patient.
  4. Call the patient back and transfer the call to the doctor.
  5. Record the call.
  6. Add the recorded call to the patient file and send to doctor.
  7. Do steps 1-6 with a computer.

The original patent actually had steps 1-6, and it was rejected. Then step 7 was added, and it was approved. "This is a patent on a doctor's computer-secretary ... Somehow, something that wasn't patentable became patentable just by saying 'do it with a computer,'" says Ranieri.

Now that's stupid.

The Supreme Court rules against one form of stupid patents
Ranieri doesn't think that all software patents are stupid; many are quite significant, of course. (My colleague Simon Phipps thinks they're evil.) But the troll-driven trend of patenting vague ideas with no implementation described needs to be squashed.

Indeed, that point seemed to be upheld in a recent decision by the United States Supreme Court known as Alice Corp. v. CLS Bank that invalidated a patent for the use of a computer to complete routine financial transactions. As Associate Supreme Court Justice Antonin Scalia remarked: "If you just say 'use a computer,' you haven't invented anything."

But just saying "use a computer" is exactly what the EFF's stupid patent of the month claims, so why was it granted? There's no way to know, but the culprit may have been bureaucratic inertia, says Ranieri. The patent won preliminary approval before the Alice decision was announced, but was actually granted after the ruling. It's possible that no one in the overworked Patent Office even noticed the conflict with the Alice decision.

Because the patent office is under heavy pressure to reduce its huge backlog of applications, patent examiners aren't spending much time considering them. In fact, the average patent is scrutinized for only about 19 hours, not nearly enough time to do the research and analysis necessary to make an intelligent decision, says Ranieri.

Reducing the backlog is obviously a good thing, but it has to be done right. "The easiest way to deal with backlog is to just say yes. So we've seen a lot of poor patents," she says.

It is important to remember that stupid patents like the one Ranieri lampooned can do real harm. Because defending a patent case can easily cost more than $1 million, patent trolls can use the threat of these legal costs to extort settlements, even when a claim is spurious.

Still, there's some reason for optimism. The Alice decision provides a tool for courts to throw these cases out. And the Patent Office is doing a better job training patent examiners. But it will take years to see how the Alice ruling is translated by the lower courts where cases are actually fought.

Until then, there will be more than enough stupid patents to fill Ranieri's blog month after month.

I welcome your comments, tips, and suggestions. Post them here (Add a comment) so that all our readers can share them, or reach me at bill@billsnyder.biz. Follow me on Twitter at BSnyderSF.

This article, "The battle against stupid software patents is on," was originally published by InfoWorld.com. Read more of Bill Snyder's Tech's Bottom Line blog and follow the latest technology business developments at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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