David A. Wheeler's Blog

Tue, 05 Oct 2010

Poor quality patents

Groklaw has some interesting amicus briefs about the horrifically poor quality of many of today’s patents; in particular, they explain why patents that never should have existed are routinely enforced. These briefs make it clear that the current U.S. patent process has become a massive boat anchor on the economy. These briefs show that the current patent process grants boatloads of nonsense patents, and then stacks the deck further by making it nearly impossible to overturn patents that should never have been granted. This is completely unfair; the patent process is supposed to promote the “Progress of Science and useful Arts”, but instead it impedes progress. Even pro-patent companies like Google declare that “Abusive patent suits based on invalid patents have powerful coercive effects and are a scourge of modern business.”

The first brief covered by Groklaw is from by Google, Verizon, Dell, HP, HTC, and Wal-Mart. They had lots of interesting things to say, and I’ll quote it liberally (below). They point out that currently overturning a patent in the U.S. requires “clear and convincing evidence”, a very high legal standard — bizarrely high, in fact. Rulings are normally overcome by a “preponderance of the evidence” instead (this is a lower bar).

That higher standard might make sense if the U.S. patent office did a completely fair and exhaustive review of a patent application before granting it. But that’s not what happens. Indeed, the U.S. Federal Trade Commission (“FTC”) has determined that “current law and [United States Patent and Trademark Office (PTO)] procedure stack the deck heavily in favor of issuing patents”.

For example, in most cases, an applicant must prove that he is entitled to a government benefit or privilege, but under the current patent regime, the applicant is granted the monopoly rights of a patent unless the government can present a case against it. All by itself that is just wrong; if you want a special monopoly, you should at least be required to prove your case; why should the government presume that you should be granted a monopoly? As Google et al say, “In other words, the PTO presumes that it should award an exclusive property right to anyone who asks for it.” Giving exclusive rights to the undeserving is an unfair invisible tax.

What’s worse, patent examiners don’t even normally consider “all aspects of patentability”, and “rarely inquire into important non-documentary sources of information, such as the knowledge of skilled artisans, market demands… and public uses or commercial offers for sale… The PTO can require an applicant to disclose such information [but] has not widely required applicants to disclose such information.” In short, the PTO will often not look for the information that any ordinarily-skilled person in that field would know — shameful. This is compounded by the PTO’s well-known lack of resources; “it lacks the resources to review each patent application thoroughly. This Court identified that problem over four decades ago… and the PTO’s resources have been stretched even further since then.”

In short, “The bottom line is that patent applicants receive the benefit of favorable procedures and a resource-constrained review by the PTO and then assert presumptively valid patents that, according to the Federal Circuit, can be defeated only by clear and convincing evidence. That serves only to insulate patents of dubious quality from adequate scrutiny at any stage.”

A different brief shown in Groklaw was filed by the Electronic Frontier Foundation (EFF), Public Knowledge, Computer & Communications Industry Association (CCIA), and Apache. They point out some other unfair aspects of the patent process. In particular, they note that “patent owners assert that accused infringers must use the prior art’s source code to prove invalidity, but that source code is often unavailable years after the fact”.

All of this is made worse because of software patents. Historically software could not be patented, and software patents are still not permitted in Europe and many other places. Software patents have deluged the PTO with applications, so the PTO has very little time it can devote to reviewing any one patent. What’s worse, the PTO simply does not have a useful database to compare to… so many software patents are patents of prior art. Software patents need to be abolished, but in the meantime, we need to at least tweak the system so that it is fairer.

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