In a corporate blog post this week, Microsoft Vice President Horacio Gutierrez promoted the idea of a "harmonized, global patent system," in which all the nations adopt common standards for processing and approving patent applications.
Properly done, patents approved in one country could become enforceable in other countries, as is the case with copyrights under the terms of the Berne Convention.
I really have no problem with harmonization if it is properly done, but I think it would be tremendously difficult to achieve good results. The reality of patent protection is radically different from that of copyrights because patents are allowed based on the merits of the application; someone has to make a judgment call.
Would nations be able to compete for patenting fees on the basis of their approval rate? After all, who could say whether I invented a new audio calibration standard here in Cupertino--or Costa Rica, if I just happened to visit a patent agent while on holiday there? Even if this wasn't allowed, I expect all nations would begin to relax their standards in order to give their local inventors an edge in the global marketplace--a classic "race to the bottom."
Or would there be just one international patent bureau, perhaps run as an agency of the United Nations? I shudder to think how that would turn out, with the General Assembly dominated by smaller nations with little vested interest in patent protection.
Unfortunately, Gutierrez takes the latter position:
In today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body.
Not only does he want an international patent bureau, he wants to create a new international court system with global enforcement powers. The potential for abuse here is truly staggering.
But as objectionable as I find that proposal, my real issue with Gutierrez's post is that it's completely irrelevant to the real problems with the worldwide patent system.
Gutierrez summarizes:
Big challenges certainly confront the global patent system: Escalating patent application backlogs; lengthening pendency periods; increasing costs of patent prosecution; dubious patent quality due to the global explosion of prior art and the time allowed to examine applications; and examination inefficiency due to duplication of work by multiple offices.
Removing the duplication would help a little. About half of U.S. patents go to non-resident inventors. That fraction is increasing, and it's already larger in most other countries because of the stronger emphasis on innovation in U.S. companies. Letting inventors go through the process just once, in their own countries, would eliminate the duplication. But again, I think this approach would create more problems than it solves.
In any event, a factor of two here or there is not going to solve the fundamental problem of patent quality. The high percentage of bad patents in the system--and believe me, I can personally testify to how many bad patents are out there--undermines the whole system.
I've been thinking about this problem for over 20 years now, and I have some suggestions:
Problem statements. All patent applications should include a statement of the specific problem(s) the claimed invention is intended to solve. These problem statements should be published immediately and anonymously, along with whatever prior-art references have been disclosed--but no details of the invention itself. The problem statements and prior-art references would be taken as narrowing the scope of the invention. The public would then be free to point to known solutions, or even submit new ones, which would create a presumption of obviousness if they happen to coincide with the filed claims.
Claim standardization. One social benefit of the patent system is to publish inventions so that others may use them, either immediately if a license is made available, or after the patent expires. A published patent may also serve as the foundation of further inventive work. But patents are difficult for humans to understand and are practically immune to reliable machine analysis and searching. I think patent claims should use a standardized grammar and vocabulary that eliminates ambiguity and precisely identifies the scope of the invention. Although defining these new standards would be a difficult and lengthy process, the rewards would be tremendous.
Examination fees. As an inventor myself it pains me to say this, but examination fees must cover the actual costs of examination. That means charging enough to let the patent office hire enough qualified examiners to handle applications as quickly as they come in, rather than letting a backlog develop. Published problem statements and standardized claims will help a lot, higher fees may cut down on bogus patent filings, and we'd all like to see the patent office managed better. But ultimately, the system has to support itself.
No triple damages. U.S. law provides for triple damages when someone "knowingly, deliberately, intentionally, willfully, or wantonly" infringes a patent. But these damages are routinely awarded whenever there is evidence that an infringer was aware of a patent, even if the knowledge played no role in product development or there was truly some reasonable disagreement as to whether the patent was relevant. As a result, this law discourages study of existing patents, which is directly contrary to the constitutional purpose of the patent system. Knowledge alone is not a bad thing; we shouldn't penalize it.
I'm sure there are many other good ideas out there for improving the U.S. patent system. We need to talk about them, and we need to find solutions to our own problems before we even start thinking about globalization.
As described in an article by CNET's Greg Sandoval yesterday ("Discovery hits Amazon with Kindle patent suit"), the parent company of the Discovery Channel (Discovery Communications) has filed a lawsuit against Amazon.com, claiming that the Internet retailer's Kindle e-book reader infringes Discovery's U.S. patent 7,298,851, titled "Electronic book security and copyright protection system".
I read through this patent in some detail, and honestly, it looks formidable. It was filed in 1999 as a "continuation in part" from patent applications dating back to 1992. Among the prior-art disclosures listed are 52 U.S. patents or applications, 34 foreign patents or applications, and 15 nonpatent publications. It has 171 claims, three of which are independent. Those are all signs of a strong patent.
Just some of the logos of the 100-plus broadcast networks owned by Discovery Communications.
(Credit: Discovery Communications, Inc.)I'm inclined to believe that the eight years of pendency and all that prior art is evidence of a mighty battle between the inventors and the U.S. Patent and Trademark Office--a battle that Discovery Communications eventually won when the patent was granted.
Claim 1 in the Discovery patent is long but reasonably straightforward:
1. A method for encrypting, sending, and receiving electronic books upon demand, comprising: creating a list of titles of available electronic books; transmitting the list of titles of available electronic books; selecting a title from the transmitted list of titles; communicating the selected title to an electronic book source; supplying a selected electronic book corresponding to the selected title to be encrypted; supplying an encryption key; encrypting the selected electronic book using the encryption key; supplying the encrypted selected electronic book; supplying a decryption key; and decrypting the encrypted selected electronic book using the decryption key.
For this claim to cover the Kindle, each step in this process has to be performed by the Kindle, Amazon's servers, or the Kindle's user (as appropriate). There are many steps, but most of them are necessary, or implied by other steps, so the total complexity of this claim isn't really that bad.
I could quibble about some of this claim language, but it does seem to describe the process used by Amazon and other e-book sellers. If that's true (and only Amazon can really say for sure, at this point), Amazon's best hope to invalidate this claim may be to find some as-yet unnoticed e-commerce patent or publication that describes the same process, as applied to some other kind of electronic content, then base an obviousness claim on that, uh, discovery.
The real issue here isn't so much whether this method is or isn't obvious; I think it is. It's that the patent has been examined in light of so much prior art that it has acquired a reasonable presumption of novelty and nonobviousness. Amazon would find it very difficult to say anything in the listed prior art invalidates this patent because the Patent Office has already said it doesn't.
The vast majority of the dependent claims built on Claim 1 are not relevant, and if Claim 1 were invalidated, I doubt that they'd matter. Claims 96 and 129, the other independent claims, are weaker than Claim 1, and it seems less likely to me that they are being infringed, but as always, courts can make unexpected decisions.
I bet we'll be hearing a lot more about this suit because it's going to affect a lot of companies that haven't actually been sued yet, including at least Adobe Systems and Sony, both which seem to use something like this process. Sony sells e-books for its Reader, and Adobe's Digital Editions software may be covered by this patent.
And I'm sure that there must be other companies that should be concerned, though the precise manner in which e-books are sold is crucial in this case, and different companies have different implementations.
One of my quibbles with the patent's Claim 1 is that it doesn't describe the situation in which the e-book itself is pre-encrypted, and the only thing that happens at the time of purchase is encrypting the book's decryption key. That distinction could become a major issue in the lawsuit.
Another quibble is that the claim seems to require that the whole e-book be encrypted with a single key, which may not always be the case. The patent's specification does mention cases in which only a portion of the book is encrypted or decrypted; these mentions, though minor, may also prove significant.
Comments on Sandoval's article point out that e-books and e-book readers were on the market before the 1999 filing date of the Discovery patent application, but that doesn't mean that they used any of the methods described in the patent's claims. For example, they may not have encrypted the e-books. It's also possible that some of those older patent applications, going back to 1992, might establish an earlier priority date for the Discovery patent's claims, though that's less likely.
At any rate, I'll be keeping my eye on this one.
Finally, I can call myself an inventor.
I've been inventing things for almost 20 years now, but Montalvo Systems was the first company I worked for that took intellectual property seriously. (That was no coincidence; it was also the first company I worked for where I helped develop the intellectual-property strategy.)
During my years at Montalvo, I came up with quite a few ideas and participated in brainstorming sessions that yielded more ideas. Most of these sessions were limited to Montalvo's own people, but there was one person I brought in to help us as a consultant--Don Alpert, who was the principal architect of Intel's Pentium processor and, possibly less significantly, a member of the editorial board at Microprocessor Report.
Working with three of us from Montalvo--myself and chief architects Greg Favor and Peter Song--Don took the lead in preparing a set of related patent applications describing a new way to design microprocessors.
The first patent from this set was ... Read more
Okay, this is going to get controversial. Just bear with me.
The Siggraph conference is basically defined by the intersection of art and technology. The ideal Siggraph attendee is both an artist and a technologist, though lots of us are only one or the other (personally, I can't even draw flies).
(Credit:
ACM Siggraph)
At Siggraph this year, the well-known patent expert ... Read more
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