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------- Forwarded message follows ------- Date sent: Fri, 15 Sep 2000 21:37:10 -0500 Send reply to: patent-l@ftplaw.wuacc.edu From: Gregory Aharonian <srctran@world.std.com> To: Multiple recipients of list <patent-l@ftplaw.wuacc.edu> Subject: PATNEWS: Patent quality: uncertain enough to drop Validity
!20000915 Patent quality: uncertain enough to drop Validity !Presumption?
Does there become a point in time when the quality of issued patents becomes so uncertain (where they aren't bad) that the Presumption of Validity should no longer apply? On one hand, you have PTO management and large corporations saying patent quality is fine, while on the other hand you have PTO examiners and increasingly pretty much everyone else saying patent quality isn't fine and getting worse. Whoever is correct, the great uncertainty is certainly grounds to argue that automatically assuming patents are valid is questionable, especially in light of the use of way too many questionable patents as litigation harassment tools.
What's worse is the lack of professionalism on the part of IP groups such as IPO, AIPLA, PLI, ABA IP section, etc., who steadfastedly refuse to have any serious discussions/debates on the issue of patent quality to the point where one of the most revealing "debates" on this issue appeared in, of all places, a recent issue of the newsdaily USA TODAY (and for the zillionith time, I will repeat my offer to debate Commissioner Dickinson in any of the above "professional" forums on the ethics of his definition of patent quality").
That said, here is a bunch of items showing how uncertain patent quality, and the thinking about patent quality, is becoming.
-- USA TODAY articles on patent quality -- Uproar at management/examiners meeting Tuesday - boos and chants -- IPO/PLI patent meetings (once again) totally ignore patent quality -- horrible IEEE article on software patents by patent lawyer
Greg Aharonian Internet Patent News Service ====================
-- USA TODAY ARTICLES ON PATENT QUALITY
Monday's USA TODAY had a very well written cover page story on the controversy of patent quality, with a second article inside on the flow of experienced examiners out of the PTO. You have to wonder why much of the information appearing in such articles is appearing in such articles instead of the publications and at the meetings of so-called professional organizations such as the IPO, AIPLA and PLI. First, some of the statistics appearing in the articles:
- PTO on track to issue 200,000 patents in the year 2000 - Over 5000 Internet patents to issue in 2000 - 20% turnover in computing examiners - >50% of ALL examiners have been there less than two years
Do these numbers not suggest a growing quality problem? For example, in the 1991 to 1997 time period, the PTO issued about 100,000 patents a year. Suddenly six years later, the PTO is issuing 200,000 patents a year. Now does anyone really believe that the inventiveness of mostly American and Japanese inventors really doubled in six years - was there really that much truly novel and unobvious and undiscovered to cause this 100% increase in issued patents? I THINK NOT. 5000 Internet patents in 2000 - when everyone in the Internet world first stops laughing, and then stops crying - I say - I THINK NOT. Half of the examiners been there last than two years? Isn't two years about how long it takes to become an experienced examiner? So should patent quality be questioned, especially in light of the conflicting comments from the Commissioner and the head of the PTO examiners' union, POPA, that appear in the article:
Ron Stern: 'Ronald Stern, president of the patent examiners union says examiners are working under "sweatshop" conditions to meet productivity quotas'.
Dickinson: "We're not overwhelmed. We're doing a great job." followed later in the story by 'Dickinson says the quality of work has yet to suffer and offers an annual survey of patent lawyers and companies that shows 67% are happy with the fairness of patent decisions, up from 54% in 1996.'
The two views, sweatshop versus not_overwhelmed, are contradictory, and even assuming the union is exaggerating to some extent, because that's what unions do for their members, it is offset by the PTO's exaggeration about how good things when they use a defense that distorts the spirit of the Constitution - that patent quality is defined by the needs of the patent applicants the PTO surverys, but not as well the American public on whose behalf the PTO awards patents (and the lack of representation of the American public on the PTO Advisory committee makes the committee illegitimate as well). It just shows how dysfuncational and hypocritical the patent system has become that the Commissioner is forced by the nature of his office to offer such a lame defense for the quality of patents - come on does anyone really not believe that privately Commissioner Dickinson knows his defense is silly?
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-- UPROAR AT MANAGEMENT/EXAMINERS MEETING TUESDAY - BOOS AND CHANTS
As I mentioned prior, PTO management is offering examiners a raise in return for relying solely on electronic searching. Here is some gossip from one of my usually reliable sources about a heated meeting between the examiners and management on Tuesday:
To Greg Aharonian:
With regards to the Tuesday meeting that PTO management demanded with union membership at Crystal Forum to discuss their offer of a pay raise in return for the examiners relying solely on electronic searching. According to some in audience the meeting "blew up in management's face".
Meeting had as speakers Ron Stern (head of examiner's union) and Nick Godici (head of PTO patent operations) speak. (Godici first, then Ron, then Godici). Godici tried to sell a deal but not the one in writing. Ron pointed out that what Godici was saying was NOT what the deal actually was, and in fact very much at odds with the written deal.
Examiners attending said that Godici was "nervous as hell" -- (noted because that is unusual). Speculation that his job is dependent on the examiners taking the deal. Comments to me include "disgust" at Godici's blatant misrepresentation, and whatever respect he had has been lost.
Boo-ing points he was trying to make. At one point a question was asked, but he didn't answer it and continued, so several audience members started yelling "Answer the question, Nick!" At one point, the audience was chanting "Answer the question, Nick!". Nick got all the heckling, Ron got the applause.
Comments also say that managers are pressuring NON-union members to join for the vote (next week) and then they can quit the union. (Not sure if one can quit so immediately but that is what is being told). Time for subpoenaing the emails!!
One person has reminded me of the quotes from report of Jan 22, 1999 roundtable and wondered if management is planning on "spreading the wealth" to management as promised in the Jan. 22, 1999 roundtable by Dickinson and their giving examiners raise is to deflect attention from their own huge raises...
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As an aside -- leaks has it that the upcoming GAO report on East/West is VERY negative on the PTO. "SEVERE DISCONNECT between the persons implementing (it) and the end users"
Godici was the person that beta testers repeatedly reported to regarding EAST/WEST and its fatal flaws in formal presentations and reports. The insistence on deploying it in light of KNOWN REPORTED FATAL FLAWS was the basic reason for the petition. The "disconnect" by management was deliberate "the hell with the facts" by management. It will be interesting to see if the GAO report will be a public document and how much of the testers' reports was given to investigators -- who apparently DID NOT talked to the testers.
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Here is some feedback regarding the deal management is trying to foist on examiners. Raise in return for lots more work and no more time -- with a brief analysis of search time.
Let us say examiner allocates 100x minutes for searching -- and uses 80x to search database A as most likely relevant and 20x for others. Happens to find usable art in database A at the 60x time mark.
With 4 or 5 databases to search the 100x time must now be divided ... so now allocates 30x to search database A. Must leave database A before finding the usable art....RESULT: search is now WORSE!!!
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True? False? Who knows? And even worse, who is there to investigate and analyze these issues for the public. ABSOLUTELY NO ONE. The integrity of the system is irrevelant.
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-- IPO/PLI PATENT MEETINGS (ONCE AGAIN) TOTALLY IGNORE PATENT QUALITY
The Practising Law Institute is having its annual meeting on IP Law in September (New York) and November (San Francisco), and the Intellectual Property Owners annual meeting is somewhere in Texas this fall. No where on the agendas of these "professional" gatherings is a session explicitly about patent quality and the problems at the PTO. Since such problems directly affect the quality of examination of their client's patent applications, you would think patent lawyers would want to hear as much as possible. But no. For example, here is a list of the titles of the talks of the PLI meeting:
- Recent developments regarding business method patents - Intermediate copying - Music, the Internet and the music industry - Trade secret developments - "Not All Internet Patents are Controversial" - luncheon talk - Trademarks, fair use and the First Amendment - Settlement of IP litigation as antitrust conspiracy - Doctrice of Equivalents - Recent developments in Markman jurisprudence - Ethics in technology protection - Right of publicity - Trade dress development - Recent developments in trademark law - European Union developments - Justice Dept / FTC on IP licensing - E-commerce licensing - Online liability - Anti-circumvention provision of the DMCA - International copyright issues
Quality? Sweatshop conditions?
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-- HORRIBLE IEEE ARTICLE ON SOFTWARE PATENTS BY PATENT LAWYER
I have been spending all week rinsing my brain of the mental taste of one of the worst articles defending the software patent system I have had the displeasure to read in the last ten years. I almost didn't write this PATNEWS because it forced me to have to think about something I was trying to eradicate from my mind. The paper is titled "Debunking Software Patent Myths" and appears in the Jul/Aug issue of IEEE Software, and is so bad that it is actually worse written and reasoned than the PTO presentation a few years ago dealing with software patent myths that criticized the PTO. Even my fingers are objecting to having to type in this PATNEWS. If I have been critical in past PATNEWS, take all of that criticism, heap it together, and pile it on this article. I won't mention the author's name to save him the embarrasment of writing such nonsense, and hopefully this PATNEWS will discourage all of you from obtaining a copy of the article and finding out which "lawyer" actually wrote the article.
The article attacks five criticisms of the software patent system, after a short introduction that concludes "The sky is not falling, and many attacks on software patents are faulty. I discuss several of these myths in the following sections." We shall see. The myths he tries to attack are:
SOFTWARE SHOULD NOT BE PATENTED THERE ARE NO VALID SOFTWARE PATENTS VALID PATENTS MUST CITE NONPATENT PRIOR ART PATENT APPLICANTS MUST SEARCH FOR PRIOR ART RECENT LITIGATION PROVES THE SYSTEM HAS RUN AMUCK
Let us look at each of his attacks and see how sound his criticism and logic are for each one.
SOFTWARE SHOULD NOT BE PATENTED
He starts out this section with "The first myth is that software simply should not be patented." Actually, I agree with him that this should be a myth, that software should be patentable. Unfortunately, he rambles on talking to software engineers about Linux, copyright, and expression in three paragraphs, when he could of, and should of, been more professional and said that "In light of Turing/Church/Post, hardware/software codesign tools and the Doctrine of Equivalents, if hardware is patentable, then so should be software". That's all you have to say to a bunch of software engineers to convince them that software should be patentable, that is if you know anything about software engineering and are writing for a professional software engineering journals.
Turing/Church/Post and others mid last-century definitely showed that mathematical functions, algorithms, hardware, software are all logically equivalent concepts (something the Supreme Court and CAFC have never understood or had explained to them). So without even knowing what patent law's Doctrine of Equivalents is, just the title of it is enough for software engineers familiar with the works of Turing/Church/Post to agree that if any of mathematical functions, algorithms, hardware and/or software are patentable, then all of them are patentable. And if the theoretical work is not convincing enough, software engineers in recent years have been developing sophisticated hardware/software codesign tools where a human inputs a system design/architecture (written in some specification language like VHDL/Verilog/SDL/LOTOS, etc.) and the computer program first partitions the system into hardware and software structures, and then using libraries, the computer generates circuitry for the hardware and source code for the software, and can do so in multiple ways depending on design constraints. The invention lies in the original system design, not the underlying hardware and software implementations. So if the hardware structures are patentable, so to should be the software structures (in both cases, of course, where novelty and unobviousness is present).
So any credible article in any IEEE journal defending software patents that does not mention hardware/software codesign tools and at least Turing, is not a credible article. Such an article pays no respect to the knowledge of the engineers reading the article. Such an article as this one.
THERE ARE NO VALID SOFTWARE PATENTS
Safely, he starts out this section with "There are probably few people who hold this extreme view.", which is true. After a few more sentences, he concludes: "Among the more than 20,000 software patents that the USPTO will issue this year, the PTO and the courts will rule only a handful invalid one day. It is unreasonable to attack all software patents as equally invalid."
Huh? Is there a logical argument here, or pretty random sentences being thrown together? First, as far back as the late 1980s, software patent lawyers speaking at IEEE conferences were arguing that the majority of issued software patents were not satisying the novelty and unobviousness requirements ("The Patent/Copyright Interface", IEEE Spring CompCon 1988, page 370), and that was before the PTO was flooded with software patent applications. Second, random surveys of software patent lawyers and software engineers working in the patent field show a consensus view that 60-80% of the issued software patents are not satisying the novelty and unobviousness requirements. A priori, this is not even surprising, given that "the PTO and courts" in reexaminations and litigation invalidate 50% of the patents that come before them (and I repeat my compliment that the PTO does a good job of reexamining software patents, if you look at the list of software patents invalidated under reexamination by the PTO at my Web site, www.bustpatents.com/invalid.htm). And if there isn't a problem with software patent quality, why is the PTO forced to repeatedly hold hearings on software patent quality, like it has in 1994, 1999 and 2000 (and why didn't the author mention these hearings, such as including the PTO Web address of the transcript of these hearings)?
Sure, it is idiotic to attack all software patents as equally invalid. But it isn't idiotic to assume that the majority of issued software patents are not both novel and unobvious, especially when no one in the patent bar or the government cares to do a study to determine what the actual percentage is.
VALID PATENTS MUST CITE NONPATENT PRIOR ART
Two more paragraphs stating the obvious that the PTO has limited resources in all areas of technology to find prior art (true), so it is not surprising if they miss from time to time (true). He concludes with "As such, we should accept the possibility that software patents, like all patents, are possibly invalid because the PTO might have missed some prior art." Also true, but also wimpy.
Possibility <--> statistics. And here is a statistic I have repeated many times in PATNEWS, a statistic that would have a big impact on IEEE readers when it comes to this issue. Upto and circa 1998/1999, 80% of the issued electronics patents (hardware/software/circuits/optics/etc.) effectively cited absolutely nothing from 30 years of IEEE/ACM/SPIE publications. Tell any software engineer reading IEEE Software (who is probably a member of the ACM as well) that software patents are issuing that cite nothing from ACM or IEEE publications, and he will laugh in the face of these issued patents. Add to these statistics (which the author is aware of), that HALF of all issued patents cite no non-patent prior art, and the more honest conclusion to such a paragraph is that "we should accept the possibility that software patents are invalid because the PTO did miss a lot of relevant prior art".
Again, any IEEE/ACM article talking about prior art that does not mention that 80% of the issued software/electronics patents effectively cite nothing from IEEE/ACM publications, such an article is dishonest.
PATENT APPLICANTS MUST SEARCH FOR PRIOR ART
He starts out with "Because of the PTO's inability to thoroughly search the software literature, some commentators have suggested that paetnt applicants have a duty to perform the search themselves and are acting in bad faith if they don't." Hey buddy, my name is spelled "Aharonian". I, and many others, are sick and tired of multi-billion dollar companies, some who are hugh braggarts about their database search technology (like IBM), not doing any prior art searching themselves in their mad rush to pile up patent quantity while ignoring patent quality. He writes "From a legal perspective, that assertion is wrong." Hey, at one point slavery was legal. He writes "... it is a stretch to suggest that inventors are acting immorally when they subjectively believe they are the first to invent but fail to search for all relevant prior art". Maybe, but inventors aren't even searching for some of the relevant prior art.
At this point, this section is not too bad, but then the author deliberately misleads the readers in the next paragraph: "The case is even less compelling at a practical level. There were 20,765 patents granted to US independent inventors during 1998, most of whom have no meaningful ability to search the prior art".
This is such a misleading distortion of patent statistics that it borders on a lie. First, there is little connection between independent inventors and software patents. The majority of independent inventors are over in the Mechanical arts, while 90% of the issued electronics patents, including software, go to corporations (both statistics of which I have published in PATNEWS to be read by the author, the alternative being the author could actually and honestly research just who is acquiring software patents). And multibillion dollar corporations own and acquire over 50% of all of the issued software patents, all of whom have meaningful ability to search the prior art, making another sentence of his a lie: "Only a handful of the largest companies have the resources to perform a comprehensive search."
Multibillion dollar companies getting over 50% of the issued software patents are not a handful - they are a rich majority abusing the system. Another dishonesty of the author is that he doesn't give figures for the resource burden. The average software patent costs $10,000 to $20,000 to acquire. A decent prior art search can be had for $1000 (either by doing it yourself, paying extra money to the PTO, or hiring a searcher), an extra 5-10% burden on the resources needed to acquire a patent. If the author was serious about discussing resources, he could have easily mentioned some of the fees and percentages to give the IEEE readers more perspective. The author didn't. He concludes with: "The best system is the present one in which we charge the PTO with finding all relevant prior art."
Maybe best for patent applicants abusing the system. But I suspect a better system for the American public on whose behalf the PTO issues patents would be for the PTO to double its patent application fees so it gets that extra $1000 it needs to give examiners the time and resources to do more thorough searches. Much like the PTO, the author doesn't think much of the American public's interests in the patent system.
RECENT LITIGATION PROVES THE SYSTEM HAS RUN AMUCK
He starts out with "Some software patent lawsuits have attracted attention and are being used by many commentators to demonstrate that software patents are overly broad and the system is out of control." Well, software patents are overly broad and the system is out of control in issuing them, which has little to do directly with litigation. He goes on with:
"But software and Internet patents are being enforced to the same extent as nonsoftware patents".
This is a very deceptive statement, which without qualification, is very misleading to engineers usually shielded from most of the problem of crappy patents being asserted. If by enforcement you mean litigation, then I agree the statistics for software patent litigation aren't that much different. However litigation is not the only negative cost being caused by software patents. Lots of companies are receiving lots of letters in the mail informing them of potential software patent infringement, lots and lots being due to the overly broad software patents being issued. For some, and maybe many of these patent, companies have to get validity opinions from their patent lawyers, which are expensive, say $20,000 to $40,000. In most cases the opinion is that the patent is invalid and the lawyers can scare away the patent assignee, but it is still a drain of money, especially if you have to do this a few times a year. And with 20,000+ software patents issuing a year, every company is a potential target for hundreds of such letters. That is what upsets so many people, the monies being wasted on these skirmishes, and money wasted on pat-tortion, where a patent owner asks for a $20,000 to $40,000 licensing fee, knowing that doing anything else, even getting a validity opinion, will cost as much if not more, and for a less satisfying result.
So while the problems of litigation due to bad software patents is worth mentioning, it is misleading to introduce this idea to the IEEE readers without explaining the other ways that victims are forced to spend money fighting off bad software patents.
The author then defends the litigation system using the Amazon one-click patent, first introducing claim one, and mentioning how the PTO searched and found some prior art, and how Barnes and Noble searched and found some prior art, but that in the end the court upheld the patent's validity "..... observing that a Barnesandnoble.com expert and inventor of some of the prior art admitted that it had never occurred to him to modify his Web-basket program to enable single-action ordering". The author might have wanted to contact the lawyers for Barnes and Noble and get their view of the court's ability to understand this prior art. Let me just say that my money is on Barnes and Nobles' lawyers winning the appeal of the lower court's decision, and when they do, I assume the author will write a followup article for IEEE Software retracting this paragraph that concludes "In short, in the Amazon.com case, the PTO got it right by issuing a valid patent of the appropriate scope."
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The author concludes his debunking article with the following paragraph:
"The software patent system is far from perfect but neither is it hopelessly in a state of disrepair. The PTO does a good job of evaluating software patents. Although additional training and search capabilities would certainly help, the focus should be on making such improvements rather than scrapping the system altogether."
Nice pablum that doesn't say much. First, these problems with software patents have been complained about since the late 1980s, fifteen years or so, without much resolution or improvement (the author demonstrates his own inability to deal with prior art by not having a bibliography for this article where he could have cited at least one of the 1980s IEEE articles written by a fellow software patent lawyer severely criticizing the system). This lack of progress does suggest that the system is hopelessly in a state of disrepair. Neither the government nor the patent bar (of which the author is a member) has done much on their own to study and fix the system, and probably would have done nothing in the last few years, if it were not for the complaints coming from the public and some members of the patent bar.
Second, the PTO does NOT do a good job of evaluating software patents (admittedly for reasons not all their fault, like wealthy applicants not doing any prior art searching themselves). Repeated hearings on software patents in 1994, 1999 and 2000, probably with more to come, where mostly patent lawyers (not writers for supermarket tabloids, a crack the author got in early in the article) criticized the quality of software patents is evidence of problems at the PTO.
Third, the author says that more training and searching resources are needed. I agree. Will the author being willing to start a campaign in the patent bar to encourage the PTO to lift its fees to a level sufficient to allow the PTO to provide these necessities to examiners? HaHaHaHaHaHaHaHaHaHaHaHa. I think not. The author really isn't serious about these issues, just trying to fill up the word count for his column in IEEE Software.
Finally, he concludes with "... the focus should be on making such improvements rather than scrapping the system altogether." Funny, I know of few professionals in the IEEE with software patent experience that are suggesting that the system be scrapped. If the author wasn't so lazy, he might want to attend meetings of the IEEE Intellectual Property committees, where IEEE members who are lawyers and/or engineers work together throughout the year trying to improve the system by providing advice to both Congress and the PTO. Funny the author didn't even bother to educate his readers about this committee by providing their Web address (which is www.ieeeusa.org/committees/IPC), a committee which as we speak is currently drafting position papers to help the next Administration in Washington deal with these problems come next January.
In short, I hope no one reading this article takes it very seriously because of the information it omits and distorts. And if you need a good software patent attorney in the Seattle area, call me, I have some good names. ------------------------------------------------------------- Private reply: Gregory Aharonian <srctran@world.std.com> Public replies: patent-l@ftplaw.wuacc.edu Technical questions: Paul Arrigo, zzarri@washburn.edu List owners: James Wadley, zzwadl@washburn.edu John Christensen, zzchri@washburn.edu To sign off, send message to: listserv@ftplaw.wuacc.edu Message merely says: unsubscribe patent-l An Experimental and Free Service of WashLawWEB: http://lawlib.wuacc.edu Terms and Conditions: http://lawlib.wuacc.edu/liability.htm ------- End of forwarded message -------