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WG: [Patents] 1998 US software patent statistics

Da dieses Posting nur allgemeine statistische Angaben zu Softwarepatenten 
enthaelt, leite ich es weiter. Wo die Statistiken herkommen, steht 
allerdings nicht dabei, die Richtigkeit oder Vollstaendigkeit kann ich 
nicht beurteilen.

-----Ursprungliche Nachricht-----
Von:	Gregory Aharonian [SMTP:srctran@world.std.com]
Gesendet am:	Samstag, 24. Juli 1999 05:29
An:	patents@liberte.aful.org
Betreff:	[Patents] 1998 US software patent statistics

    I am new to thislist, though have spent much time studying software
patents inthe US.  Here are some statistics some of you should find of

Greg Aharonian

!19981018   17,500 software patents to issue in 1998

                 1998 Software patent statistics - Jan. to Sep.

    Based on an analysis of 3336 software patents issued circa 
of 1998, I have put together the following statistics.  Simply put, in 1998
and 1999 the PTO will issue 40,000 software patents, ten times the amount
issued six years earlier in 1992 and 1993, without ten times the resources.
In short -

      - 1998 quicky stats: 17,500 software patents; IBM/Microsoft/Sun/HP
        in top ten, 300 Internet specific patents (even more in 1999),
        700 financial/business patents (today's Business Week 10/26 has
        complaints from Wall Street)

      - That a software patent issues means nothing about the patent's
        novelty and/or obviousness - >50% of these patents are invalid
        because >80% cite insufficient to zero non-patent prior art

      - US software patent system (PTO, patent bar) has no credibility
        beyond that of a statutorial registration system - Rule 56 is
        a failure

      - Large companies getting the bulk of software patents use them to
        create barriers of entry for other big, and small, companies

      - 40,000 patents means $50,000,000 in application issue fees, and
        $40,000,000 in maintenance fees some years later - definitely
        helps make the PTO a profit center

      - The quality of issued software patents can be improved greatly
        within the PTO's current powers and budgets - it refuses to do so
        so it won't lose the above fees

    Here are software patent statistics for the 1990s decade, with the 1996
to 1999 figures estimates:

                              1999     22500 ---|
                              1998     17500 -------- 40,000
                              1997     13000
                              1996      9000
                              1995      6100
                              1994      4500
                              1993      2400 --------  4,000
                              1992      1600 ---|
                              1991      1500
                              1990      1300

Incredible growth with no relationship to the minimal revolutionary 
nature of the software industry.  There will be 100,000+ active US software
patents in the year 2000.  Typical current issues of the PTO Official 
are listing 500+ new patents each week - the week of Sept. 1st saw 518 new
software patents.  Get ready to be sued.

    How well are these patents being examined?  More specifically, how well
are these patents being searched to assess novelty and nonobviousness under
sections 102 and 103?  In short, poorly.  The PTO refuses to give examiners
enough time, money and resources to search.  For yet another year, over 50%
of software patents cite NO non-patent prior art, the average patent citing
only 3.1 non-patent prior art items, which is woefully inadequate, since
there are dozens of highly relevant non-patent prior art items for most of
the patents being issued.  And too many large companies are hiding behind
the impotence of Rule 56 to not do any searching themselves.  Some numbers:

                   Number of non-patent      Percentage of issued
                   prior art citations         software patents
                   --------------------      --------------------
                                                1998     1997
                            0                    53       51
                            1                    12       14
                            2-3                  14       15
                            4-10                 15       15
                            >10                   6        5

        Average number of non-patent prior art cited in 1998  -  3 articles
        Average number cited ignoring outliers                -  2 articles
        Average number of prior US patents cited              - 11 patents
        Average number of prior foreign patents cited         -  1 patent

Less than six percent of the patents cite even half of the relevant amount
of prior art.  As I shall argue later this week, bibliographically this
means software patents should be presumed to be invalid.  Patent 5,796,943
is a good example of the system not at worked - a smart card patent that
cites NO patent prior art and NO non-patent prior art.

    Sadly, these numbers have changed little since I analyzed 1000 software
patents in the first few months of 1994.  Thus since Compton's multimedia
patent forced the PTO pay attention to software patents, the PTO has made
absolutely no progress in improving the quality of issued patents, despite
the unsubstantiated comments to the differ made in public by the heads of
the various computing examining groups (2300/2400/2700).  If anything, the
quality of patents has dropped substantially, given that there is no way 
government agency can increase its output TEN fold in six years while 
increased its process resources (examiners, tools) much less so.

    So despite 4 years of gimmick fixes by the PTO, the 'wisdom' taught by
the Scatological Patent Institute, stick-heads-in-the-sand agendas of the
software committees of the AIPLA, and examiner access to the Internet (yes,
I know examiners are using Yahoo/Altavista/etc. - I don't for my busts),
little has changed in the quality of issued patents.  Couple this with a 
management style that deliberately encourages invalid software patents to
issue, as one examiner recently lamented to me:

        One of the reasons so many "crappy" software patents issues is
    that examiners are forced to do so.  The PTO's production system
    discourages CONTINUED searches is a really big problem, for 2 reasons:

        1) upon 1st amendment, PTO management's strong encouragement to
           either: issue or make final (do NOT continue searching)

        2) in effect, actually taking AWAY counts for finding new art
	   with which to make a rejection (for continuing to search)
           Why?  We not only get no points for non-final-rejections,
           but a non-final rejection also takes much longer to finally
           go to a count (abandonment or issue)

    So if they rewrite their claims to get around our first action, they
    usually win, especially if they throw in additional claims to drag
    things out.  Thus, we might throw a couple of good punches, but
    essentially we always are forced to quit the fight in the first round.
    And applicants know this.

So patent applicants and their lawyers hide behind the impotence of Rule 56
to not send in any non-patent prior art, forcing the examiner to rely 
on patent prior art in one round of searching to decide 102 and 103.  A 
if it wasn't so unethical.

    Who is getting the patents?  For the most part, it is American and
Japanese companies and individuals:
                         United States           60%
                         Japan                   25%
                         Europe                   9%
                         Asia                     3%
                         Others                   3%

Europe has yet to appreciate the trade barrier potential of software
patents, and EC bureaucrats should be more willing to spend money to deal
with this problem.  Currently they are dragging their feet, to the great
disadvantage of the European software industry.  And at least for software,
EPO does just as bad an examination job as the PTO - the EPO's better
reputation cannot be extended to software patents (comparisons of PCT
search results shows little difference between EPO and PTO).

                            WHO'S GETTING THE PATENTS

    Microsoft and Sun are firmly in the top 10, with Apple probably soon to
join them.  MIT is the lone university with significant numbers of software
patents.  IBM, still number one in (invalid) software patents, though its
percentage is dropping. For years, IBM had been getting about 9 percent of
the software patents, though in 1998 it is in the area of about 7 percent.
ATT dropped out of the top 10, with its spinoff Lucent taking its place.
Automobile companies continue their rise (Ford, Toyota, Honda).

   Estimates of software patents by companies in 1998 (based on 3336 

                        1200   IBM
                         360   Motorola
                         330   Fujitsu
                         330   Canon
                         310   Microsoft
                         300   Lucent / BellCore
                         280   NEC
                         260   Sun
                         260   HP

                         250   Sony
                         250   Hitachi
                         240   Xerox/Fuji Xerox
                         240   Mitsubishi
                         230   Intel
                         220   Toshiba
                         190   Apple Computer
                         160   Siemens Aktiengesellschaft
                         150   Samsung
                         150   Eastman Kodak
                         140   Telefonaktiebolaget LM Ericsson
                         130   Compaq/DEC
                         120   ATT
                         110   Nikon
                         110   Matsushita Electric
                         100   Seiko
                         100   Toyota
                         100   Sharp
                          90   Ricoh Corporation
                          90   Honda
                          80   Nokia Telecommunications
                          80   U.S. Phillips
                          80   General Electric
                          70   MCI Corporation
                          70   Bell Atlantic Network Services
                          60   Yamaha
                          60   Pitney Bowes
                          60   Olympus Optical
                          60   NCR
                          60   Mita Industrial
                          60   Ford
                          60   Brother Kogyo
                          50   Oracle
                          40   MIT

These companies mostly have a strategy of quantity over quality so that 
can play licensing games (often when IBM comes knocking - see the 3/17/97
article in Business Week).  That some of the biggest also dominate the
Software Patent Institute makes it not surprising that the SPI is a fraud.

                           SOFTWARE PATENT CATEGORIES

What's being patented?  Everything still for the most part.  Networking
patents increasingly dominate, with automobile/vehicle patents continuing
their steady rise.  Optics is also becoming popular, with the camera and
copier companies getting lots of software patents.

   Estimates of software patents by categories in 1998 (based on 3336 

                   3800  Networking / Communication
                   2200  Operating Systems
                   2000  Image Processing
                   1350  Vehicles
                   1350  (Graphical) User Interfaces
                   1200  Graphics
                   1200  Process Control
                    990  Signal Processing
                    980  Office Automation
                    940  Security
                    930  Engineering
                    840  Database
                    840  Optics
                    830  Medical
                    810  Numerical Analysis
                    710  Biological
                    700  Financial
                    650  Distributed Processing
                    580  Digital/Analog Circuit Design
                    500  Speech Recognition/Synthesis
                    510  Pattern Recognition
                    475  Computer Aided Software Engineering
                    470  Physics
                    410  Navigation
                    410  Word Processing
                    360  Entertainment / Multimedia
                    310  Compression
                    300  Internet
                    300  Object Oriented
                    290  Computer Aided Design
                    280  Chemical
                    250  Games / Gambling
                    240  Geophysical
                    220  Character Recognition
                    200  Neural Networks
                    190  Multiprocessing
                    190  Natural Language Processing
                    170  Manufacturing
                    160  Algorithms / Data Structures
                    150  Robotics
                    150  Artificial Intelligence
                    120  Agricultural
                    100  Music
                     95  Simulation
                     95  Parallel Processing
                     90  Fuzzy Logic
                     80  Genes/Genetic Analysis
                     75  Education
                     50  Virtual Reality
                     25  Vision
                     20  Spreadsheets
                      6  Quantum Computing
                      6  Java
                      6  Year 2000

Topics slipping in the ranks include music, education, word processing, and
artificial reflecting industry trends.

                              PTO EXAMINING GROUPS

Who is examining these patents?  About two thirds are still being handled
by the Computing/Communications megagroup of Groups 2300/2400/2600/2700,
but other groups are handling one third of the software patents, a large
number for which some of these other groups are not qualified to examine
(worse by not having any software search resources directed their way).
Further I see some companies filing most software ideas written in such a
way that it is handled by the non-software/hardware groups.

                                     PTO Groups
          35%  -  Computing Megagroup       2700
          12%  -  (was mostly hardware)     2300
           8%  -  (was mostly software)     2400
 66%      11%  -  (was telecommunications)  2600
 34%      11%  -  Ind. Elect./Special       2100/2200
           4%  -  Electrooptics             2500

          10%  -  Mechanical                3100/3200/3400/3500/3600/3700
           7%  -  Medical Devices           3300
           2%  -  Chemical                  1100/1200/1300/1500/1800

    How about other countries?  Based on filings, my rough estimate is that
there are twice as many Japanese software patents as there are US, though
the Japanese patents tend to be these short, low number of claims, patents.
My other guess is that there are about half as many European software
patents as US.  China is a big unknown, with more patents than Japan.
All together, as we enter the next century, there should be about 300,000
active software patents around the world.

Greg Aharonian
Internet Patent News Service
(for info on free subscription, send 'help' to   patents@world.std.com )
(for prior art search services info, send 'prior' to patents@world.std.com 

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