The answer to the smartphone patent thicket

The answer to the smartphone patent thicket

Summary: In a sane world of software patents, you patent your implementation of wireless e-mail, or e-mail sync.

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The critics are right. The answer to the smartphone patent thicket is not a patent pool.

Given that we are unlikely to get rid of software patents, then, what can we do?

I would suggest one thing we can do is understand what patents are for, and bring our policy back into line with that idea.

It's one of the powers given Congress, under Article I, Section 8 of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Most critics focus on the second part of that, the idea that patents and copyrights should be secured for limited times, and that Mickey Mouse is well past his sell-by date. (I don't think throwing money on Walt Disney's grave at this point will create anything.)

I think it's time we focused on the first part, the purpose of patents and copyrights, which is "to promote the progress of science and useful arts." In other words, to spur innovation.

In the medical field, which I also cover for ZDNet, patents work pretty well. Companies patent chemical compounds, or they patent specific devices. They publish the designs, so other inventors can see what has been done and try to do better. If they do better, they get their own patent.

In other words, patents are meant to produce better mousetraps. You patent a specific design. You don't patent the idea of killing mice. (Wikipedia has a nice collection of mousetraps. This is one.)

Software patent examiners seem to forget this. Thus Microsoft claims to own the whole field of syncing e-mail between a cloud and a device. NTP claims to own the whole idea of wireless e-mail.

How does this spur innovation? It doesn't. You're patenting the idea of killing mice. We can't create a better mousetrap until your patent expires, and then we're stuck with the first new patent to hit the door.

In a sane world of software patents, you patent your implementation of wireless e-mail, or e-mail sync. You publish your code and if someone goes at it in the same way, they know they're infringing. The code is the design, and if you aren't willing to publish that through the patent office it should be no patent for you.

Then, everyone else gets to look at the code, they know where the possible infringement is, and they can invent their way around it. They can get their own patent. In other words, why not have two or four or 10 patents for various wireless e-mail implementations? Let 1,000 patents bloom.

That's the way it works in medicine. You patent a specific stent, not the idea of using a stent to hold a blood vessel open. You patent a particular compound against cholesterol, not the whole concept of statins.

It doesn't take a new law or international treaty to get this right. Just a change in policy at the patent office, and a head of that patent office with the courage and intelligence to stand up for this change before Congress and the industry.

And if said official is interested, I am not claiming a patent on this analogy.

Topics: Hardware, Legal, Mobility, Smartphones

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9 comments
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  • RE: The answer to the smartphone patent thicket

    You are so right it is painful. The US patent office has screwed up things so badly that it would take an act of Congress to straighten it out. 99% of all software patents should be voided. This will never happen. Too many companies have a vested interest in keeping their patents intact.
    sismoc
    • RE: The answer to the smartphone patent thicket

      @sismoc I wouldn't be so downhearted. We have already had a bit of reform in the right direction the last few years on the software patent front. Continued pressure can do it.
      DanaBlankenhorn
      • Yet there is one flaw in the argument

        "Then, everyone else gets to look at the code, they know where the possible infringement is, and they can invent their way around it"

        Say I create a far superior search algorythm then Google, what is to stop Google from taking and using the code, hidden behind the walls of their data centers to stay on par with me?

        They do not have to show anyone their code, and they have far more cash at hand to drag things out in court were I to challenge them on it, and that is only if I had "proof" to do so.

        If I do not patent it, then anyone is free to recreate the code at their leisure.
        Tim Cook
      • RE: The answer to the smartphone patent thicket

        @Mister Spock
        That is why trade secrets exist. You make a choice and take a risk when you file for a patent. Patent don't protect the little guy very well, either.
        daengbo
  • Copyrights are not the same as Patents

    'Most critics focus on the second part of that, the idea that patents and copyrights should be secured for limited times, and that Mickey Mouse is well past his sell-by date.'<br><br>I'm from Canada, but I'd think the Copyright laws in the US are applied the same. My understanding is that a Copyright exists for the lifetime of the entity that created said Copyright. In your example, the Walt Disney Company would be the Copyright holder of Mickey Mouse and as long as the Walt Disney Company exists, no one else has the right to use the Mickey Mouse character without their expressed consent.<br><br>Patents, on the other hand, do expire. So if the Walt Disney Company invented a special projector that would present Mickey Mouse in a certain way in theatres, they'd have the right to produce that projector exclusively for a limited time (say, for example, 15 years) until someone else would be allowed to produce that same projector.
    sean_hando@...
    • RE: The answer to the smartphone patent thicket

      @sean_hando@... Actually, that's not exactly right. Copyright terms have been extended several times, most recently in the late 1990s, and now go to the life of the creator plus 75 years. Corporations may control copyrighted product, but the copyrights are given to the people actually creating the work. And even when a copyright is held by a corporate entity (as in a movie) it's still subject to a standard term, which does expire.

      Unless it's extended again by Congress.
      DanaBlankenhorn
  • you might as well copyright the alphabet

    it's just about the same as the patent system's interpretation of software these days.
    sparkle farkle
  • In Canada, ALGORITHIMS can be patented. Ideas still can't!

    Here in Canada, we had no software patents for the longest time. Not long ago, one person took his fight for a software patent to court, and WON! Most of us here who care about intellectual property and innovation were flabbergasted that the court decided in his favour. But after reading the court's decision, it became clear how they had decided.

    The patent was granted as a Business Processes type of patent. What was being patented was not the idea of his, but his particular process or algorithm. Business Process patents were originally created for things like chemical processes or manufacturing processes. Thus, companies like Procter and Gamble could patent not only a new formula for soap, but also a new method for making soap.

    In the end, I came to agree with the decision. It makes sense to be able to patent HOW something is done, not the idea of doing something.
    mheartwood
  • RE: The answer to the smartphone patent thicket

    Dana - awesome article.
    I have been looking for a way to explain this distinction to my HS kids and could not come up with a simnple relevant explanation.
    You have done a great job - thx!!
    rhonin