There are a lot of people complaining about lousy software patents these days. I say, stop complaining, and start killing them. It took me about fifteen minutes to stop a crappy Microsoft patent from being approved. Got fifteen minutes? You can do it too.
In a minute, I’ll tell you that story. But first, a little background.
Software developers don’t actually invent very much. The number of actually novel, non-obvious inventions in the software industry that maybe, in some universe, deserve a government-granted monopoly is, perhaps, two.
The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours.
Nevertheless, a lot of companies large and small have figured out that patents are worth money, so they try to file as many as they possibly can. They figure they can generate a big pile of patents as an inexpensive byproduct of the R&D work they’re doing anyway, just by sending some lawyers around the halls to ask programmers what they’re working on, and then attempting to patent everything. Almost everything they find is either obvious or has been done before, so it shouldn’t be patentable, but they use some sneaky tricks to get these things through the patent office.
The first technique is to try to make the language of the patent as confusing and obfuscated as possible. That actually makes it harder for a patent examiner to identify prior art or evaluate if the invention is obvious.
A bonus side effect of writing an incomprehensible patent is that it works better as an infringement trap. Many patent owners, especially the troll types, don’t really want you to avoid their patent. Often they actually want you to infringe their patent, and then build a big business that relies on that infringement, and only then do they want you to find out about the patent, so you are in the worst possible legal position and can be extorted successfully. The harder the patent is to read, the more likely it will be inadvertently infringed.
The second technique to getting bad software patents issued is to use a thesaurus. Often, software patent applicants make up new terms to describe things with perfectly good, existing names. A lot of examiners will search for prior art using, well, search tools. They have to; no single patent examiner can possibly be aware of more than (rounding to nearest whole number) 0% of the prior art which might have invalidated the application.
Since patent examiners rely so much on keyword searches, when you submit your application, if you can change some of the keywords in your patent to be different than the words used everywhere else, you might get your patent through even when there’s blatant prior art, because by using weird, made-up words for things, you’ve made that prior art harder to find.
Now on to the third technique. Have you ever seen a patent application that appears ridiculously broad? (“Good lord, they’re trying to patent CARS!”). Here’s why. The applicant is deliberately overreaching, that is, striving to get the broadest possible patent knowing that the worst thing that can happen is that the patent examiner whittles their claims down to what they were entitled to patent anyway.
Let me illustrate that as simply as I can. At the heart of a patent is a list of claims: the things you allege to have invented that you will get a monopoly on if your patent is accepted.
An example might help. Imagine a simple application with these three claims:
1. A method of transportation
2. The method of transportation in claim 1, wherein there is an engine connected to wheels
3. The method of transportation in claim 2, wherein the engine runs on water
Notice that claim 2 mentions claim 1, and narrows it... in other words, it claims a strict subset of things from claim 1.
Now, suppose you invented the water-powered car. When you submit your patent, you might submit it this way even knowing that there’s prior art for “methods of transportation” and you can’t really claim all of them as your invention. The theory is that (a) hey, you might get lucky! and (b) even if you don’t get lucky and the first claim is rejected, the narrower claims will still stand.
What you’re seeing is just a long shot lottery ticket, and you have to look deep into the narrower claims to see what they really expect to get. And you never know, the patent office might be asleep at the wheel and BOOM you get to extort everyone who makes, sells, buys, or rides transportation.
So anyway, a lot of crappy software patents get issued and the more that get issued, the worse it is for software developers.
The patent office got a little bit of heat about this. The America Invents Act changed the law to allow the public to submit examples of prior art while a patent application is being examined. And that’s why the USPTO asked us to set up Ask Patents, a Stack Exchange site where software developers like you can submit examples of prior art to stop crappy software patents even before they’re issued.
Sounds hard, right?
At first I honestly thought it was going to be hard. Would we even be able to find vulnerable applications? The funny thing is that when I looked at a bunch of software patent applications at random I came to realize that they were all bad, which makes our job much easier.
Take patent application US 20130063492 A1, submitted by Microsoft. An Ask Patent user submitted this call for prior art on March 26th.
I tried to find prior art for this just to see how hard it was. First I read the application. Well, to be honest, I kind of glanced at the application. In fact I skipped the abstract and the description and went straight to the claims. Dan Shapiro has great blog post called How to Read a Patent in 60 Seconds which taught me how to do this.
This patent was, typically, obfuscated, and it used terms like “pixel density” for something that every other programmer in the world would call “resolution,” either accidentally (because Microsoft’s lawyers were not programmers), or, more likely, because the obfuscation makes it that much harder to search.
Without reading too deeply, I realized that this patent is basically trying to say “Sometimes you have a picture that you want to scale to different resolutions. When this happens, you might want to have multiple versions of the image available at different resolutions, so you can pick the one that’s closest and scale that.”
This didn’t seem novel to me. I was pretty sure that the Win32 API already had a feature to do something like that. I remembered that it was common to provide multiple icons at different resolutions and in fact I was pretty sure that the operating system could pick one based on the resolution of the display. So I spent about a minute with Google and eventually (bing!) found this interesting document entitled Writing DPI-Aware Win32 Applications [PDF] written by Ryan Haveson and Ken Sykes at, what a coincidence, Microsoft.
And it was written in 2008, while Microsoft’s new patent application was trying to claim that this “invention” was “invented” in 2011. Boom. Prior art found, and deployed.
Total time elapsed, maybe 10 minutes. One of the participants on Ask Patents pointed out that the patent application referred to something called “scaling sets.” I wasn’t sure what that was supposed to mean but I found a specific part of the older Microsoft document that demonstrated this “invention” without using the same word, so I edited my answer a bit to point it out. Here’s my complete answer on AskPatents.
Mysteriously, whoever it was that posted the request for prior art checked the Accepted button on Stack Exchange. We thought this might be the patent examiner, but it was posted with a generic username.
At that point I promptly forgot about it, until May 21 (two months later), when I got this email from Micah Siegel (Micah is our full-time patent expert):
The USPTO rejected Microsoft's Resizing Imaging Patent!
The examiner referred specifically to Prior Art cited in Joel's answer ("Haveson et al").
Here is the actual document rejecting the patent. It is a clean sweep starting on page 4 and throughout, basically citing rejecting the application as obvious in view of Haveson.
Micah showed me a document from the USPTO confirming that they had rejected the patent application, and the rejection relied very heavily on the document I found. This was, in fact, the first “confirmed kill” of Ask Patents, and it was really surprisingly easy. I didn’t have to do the hard work of studying everything in the patent application and carefully proving that it was all prior art: the examiner did that for me. (It’s a pleasure to read him demolish the patent in question, all twenty claims, if that kind of schadenfreude amuses you).
(If you want to see the rejection, go to Public Pair and search for publication number US 20130063492 A1. Click on Image File Wrapper, and look at the non-final rejection of 4-11-2013. Microsoft is, needless to say, appealing the decision, so this crappy patent may re-surface.) Update October 2013: the patent received a FINAL REJECTION from the USPTO!
There is, though, an interesting lesson here. Software patent applications are of uniformly poor quality. They are remarkably easy to find prior art for. Ask Patents can be used to block them with very little work. And this kind of individual destruction of one software patent application at a time might start to make a dent in the mountain of bad patents getting granted.
My dream is that when big companies hear about how friggin’ easy it is to block a patent application, they’ll use Ask Patents to start messing with their competitors. How cool would it be if Apple, Samsung, Oracle and Google got into a Mexican Standoff on Ask Patents? If each of those companies had three or four engineers dedicating a few hours every day to picking off their competitors’ applications, the number of granted patents to those companies would grind to a halt. Wouldn’t that be something!
Got 15 minutes? Go to Ask Patents right now, and see if one of these RFPAs covers a topic you know something about, and post any examples you can find. They’re hidden in plain view; most of the prior art you need for software patents can be found on Google. Happy hunting!
Need to hire a really great programmer? Want a job that doesn't drive you crazy? Visit the Joel on Software Job Board: Great software jobs, great people.
Continue reading
