This happens several times a year, whenever a high profile patent is issued, and I figured it might be helpful to provide some sort of Patent Outrage Guide, to help people understand their rage (or lack thereof). So if you’re outraged and want to know why, or if you simply want to be outraged and want to know how, please read on …
I. What’s it “Cover”?
First of all, you can’t be outraged about a patent if you don’t know what the patent actually “covers.” A patent’s scope is determined by the claims that appear at the end of the document. Think of each claim as a standalone list of things or steps that a product would have to have or do in order to infringe that claim. If your product has every limitation in one claim, then congratulations, you infringe that claim and that patent. If your product is missing at least one of the limitations of a claim, then congratulations, you don’t infringe that claim.
That sounds simple, but we’re lawyers, so it can’t be simple. The claims are not read in a vacuum. Instead, they are read and interpreted in the context of the rest of the description in the patent. So if a patent describes a “nut” as being the kind you screw on a bolt, the patentee probably can’t say that a peanut infringes that limitation.
To further complicate things, the claims are also interpreted in view of the prosecution history. The prosecution history of a patent is the back-and-forth written record between the applicant (inventor) and the patent office that ultimately resulted in the patent getting granted. As many of you know, the patent office is charged with examining patent applications, and only granting the ones that claim new and non-obvious inventions. If the applicant had to make arguments about the scope of his/her claims to get it to issue (e.g., “my claimed ‘nut’ refers only to a peanut, and not a walnut”), then the claim will be interpreted with those arguments in mind – as a member of the public, you have the right to rely on those arguments in determining the proper scope of the patent’s claims.
II. That’s Too Broad!
Ok, so now you’ve got a handle on the patent’s scope, and you think it’s too broad (e.g., you think it describes something that’s been around forever). Should you be outraged? Maybe, but let’s put things in perspective. First of all, you might be reading the claims incorrectly. A claim is interpreted as a hypothetical “person of ordinary skill in the art” would, in view of the specification and file history mentioned above, so it’s quite possible that there are one or two key words lurking in the claims that are interpreted more narrowly than you think, rendering the patent narrower than you think.
However, it’s certainly possible that the PTO has issued a claim that is too broad. But before you get outraged at this, some perspective may be helpful. The PTO handles a MASSIVE number of patent applications. Over 17,000 were issued last month, and another 26,000 were published (new applications are typically published 18 months after filing). Each application probably has, on average, about 20 different claims (since that’s what you get “for free” when you file the application), and each claim can have a dozen or more limitations. To reject these claims for not being novel, the PTO has to search for evidence that every feature in these claims can be found in the prior art, and in the arrangement claimed. It’s certainly possible that, in the relatively limited amount of time an examiner can spend searching a particular case, the examiner might be unable to find evidence for one of those words. If that happens, the applicant deserves the patent.
Don’t know if that’s outrage-worthy, though. We aren’t outraged at the postal service for occasionally losing a letter – we understand it’s a necessary cost of having the service at all. Doesn’t the PTO deserve the same understanding?
III. The Companies are Evil!
Some critics argue that the companies seeking broad patents are somehow unethical for doing so. I’m no expert on defining what is or is not ethical for a business, but it seems to me that a business’s main goal is to stay in business. Part of that involves not doing things (e.g., kicking puppies, pulling wings off of flies, etc.) that would cause it to lose customers and go out of business, but the main goal has to be to stay in business. Indeed, a public company’s directors can be SUED by their shareholders if they don’t do a good job keeping the company afloat.
Patenting its own innovations helps companies stay in business in several ways. First of all, they can assert them to keep competitors out of the same market space. Second of all, simply having a collection of patents is useful when doing business with those competitors. Nobody wants to have to sue, so if two competitors each have formidable patent portfolios, they will be more likely to find a business solution to their differences.
So I’m afraid that on the whole “evil” front, I can’t fault the companies for seeking to protect their inventions. Of course, I’m a patent attorney, so I may be biased there.
IV. Patenting Software, Are you MAD?
Some of the posters clearly feel that software should not be eligible for patent protection. I can understand where they’re coming from. Good software programming practice involves writing code and modules that can be re-used, saving time the next time around. Sharing and building on each others’ work is just an integral part of good programming practice.
The tough part for those posters, though, comes from the fact that not everyone feels the same way. The developer who spent 6 months coming up with a novel and useful software routine doesn’t always want to just share that with everyone, especially if they don’t get anything comparable in return. Sure, it could be a nice thing to do, but is it worth going out of business, or getting sued by shareholders?
If you must get outraged at the patentability of software, then the target of your outrage shouldn’t be the PTO, or the companies, it should be Congress. They’re the ones responsible for writing the laws, and they alone have the power to rewrite them.
V. Conclusion – Be Happy
So as you’ve figured out by now, this biased patent attorney happens to think that most of the patent outrage is misplaced and/or undeserved. We all live and work under the laws and rules that are in place, and everyone’s just trying to get by. Thanks for reading!