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Google's Patents Are About to be Killed? Calm Down, Everyone. It's Just Advocacy, a/k/a FUD
Thursday, July 24 2008 @ 09:48 PM EDT

I'm getting so many emails asking me what's happening with Google's patents and asking me to explain what is going on. OK. Nothing. Just a little legal FUD. Or some excellent advocacy, depending on your point of view.

What has everyone beside themselves with either joy or panic is an article on Patently-O provocatively titled, The Death of Google's Patents?, by Professor John Duffy, which argues that the USPTO's position in some recent patent cases will, if adopted, cause the sky to fall on software patents unless they are tied to a particular computer -- and then The End Will Come for patent law as we know it:

The logic of the PTO’s positions in Nuijten, Comiskey and Bilski has always threatened to destabilize whole fields of patenting, most especially in the field of software patents. If the PTO’s test is followed, the crucial question for the vitality of patents on computer implemented inventions is whether a general purpose computer qualifies as a “particular” machine within the meaning of the agency’s test. In two recent decisions announced after the oral arguments in the Bilski case, Ex parte Langemyr [PDF] (May 28, 2008) and Ex parte Wasynczuk [PDF] (June 2, 2008), the PTO Board of Patent Appeals and Interferences has now supplied an answer to that question: A general purpose computer is not a particular machine, and thus innovative software processes are unpatentable if they are tied only to a general purpose computer.

I wish. But as I'll show you, this is advocacy, not current truth. Might I suggest you read the first two comments under the article? Professor Duffy, the author of the article about Google's patents, represents Regulatory Datacorp, one of the amici in the Bilski case. There were zillions of them filed, including one by Red Hat explaining the FOSS point of view. Here's Duffy's brief [PDF].

Professor Duffy was asked by the court to present oral arguments. You can hear him speak at the en banc hearing, because we posted the link in our article that included Groklaw's report. Remember Webster attended for us? Go to this page, then search by the keyword Bilski in the top box, marked Captions. The results page is set up so you have to scroll down to find the audio.

I believe the author chose Google's patents to galvanize patent lawyers and patent owners in large corporations to get on the ball and try to change what he views as a horrific future. Lawyers do write articles sometimes because they know judges can be influenced by what they read. It's one lawyer's opinion and analysis, in other words, one with a stake in the outcome. Would you like to see what another lawyer says about the subject, in contrast?

OK. Here you go. Here's another view, from another lawyer, Steven J. Henry of Wolf, Greenfield & Sacks:

While some expect the decision will invalidate business-method patents, Steven J. Henry of Wolf, Greenfield & Sacks, P.C., one of the lead attorneys for Signature in 1998, believes that the Federal Circuit -- and ultimately the Supreme Court -- won't toss out the State Street precedent entirely.

"Most likely they'll refine the approach, but I don't think there will be a huge swing," he says. "The Federal Circuit stated in no uncertain terms in 1998 that it was wrong thinking in the past to have excluded business-method patents, and State Street corrected that. I don't foresee a complete reversal of direction at this point -- just a mid-course correction."

He was involved in the State Street case, which is the case that first allowed business methods patents to issue and which Bilski might overturn to whatever extent the appeals court chooses, so he surely knows what he is talking about. And I mentioned the first two comments under the Patently-O article, the first by Mr. Patently-O himself, Dennis Crouch:

"The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents."

This statement seems like an extreme interpretation of the USPTO position. The USPTO position, after all, relies upon the Supreme Court decisions in Benson, Flook, and Diehr.

Here's what Crouch opined right after the Bilski oral arguments:

Tea leaves (FWIW):
  • PTO’s decision will be affirmed by shaping the facts (e.g., by calling the invention an abstract idea).
  • State Street will not be overruled.
  • The court will not implement a “machine test.”

Is he maybe on vacation and letting guest bloggers fill in? I don't know, but it's clear he does not agree with Duffy's analysis.

The story is being picked up now by the blogosphere and the media in general. Here's Robert J. Ambrogi of Legal Blog Watch's coverage and it's on Slashdot with the title, The Death of All Software Patents?. Legal Blog Watch:

That is the title of a provocative new article arguing that the U.S. Patent and Trademark Office's newly developed position on patentability will invalidate countless software patents, notably among them Google's patent on its Web searching technology....

Depending on your perspective, you may see the death of Google's PageRank patent as good news or bad news. But aside from the implications for any particular patent, the greater worry is that the USPTO's proposed rule would throw open any number of patents to uncertainty and give rise to "previously unimagined litigation." If that happens, Duffy contends, "vast industries of modern innovation" will be put on hold.

Well. Some might argue that innovation is being hindered by software patents, actually. James Bessen and Michael J. Meurer do in their new book Patent Failure. They are law professors too. The Wall Street Journal recently wrote about the book and the current debate about software patents:

New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, "Patent Failure," found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.

These are shocking findings, but they point to the solution. New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs.

Our patent system for most innovations has become patently absurd. It's a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it.

Anyway, I thought you'd like to know that Google's patents are not currently in front of any USPTO firing squad, as far as I know. And you might enjoy to listen to the oral arguments, if you didn't before, in Bilski now that you know Professor Duffy a bit better. The man can speak. And write. But that doesn't make what he says right.

You asked what I think. I'll tell you. It's one lawyer's opinion, maybe written in an extreme way to energize opposition to a trend he'd like to deep six, as I read it. He is alarmed that software patents might be thrown overboard, and he chose one to try to make us see how terrible it would be should it happen. So, it's a call to the world (yo! Google! yo! patent holders!) to do something quickly before this -- to a patent lawyer -- horrific event comes to pass. So, I view the article on Patently-O as an attempt to influence the debate. He certainly got attention. Lawyers are good with words, you know. It's what they do for a living. But as you've seen in the SCO saga, just because a lawyer asserts something, it doesn't make it true necessarily.


Google's Patents Are About to be Killed? Calm Down, Everyone. It's Just Advocacy, a/k/a FUD | 146 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: alisonken1 on Thursday, July 24 2008 @ 09:58 PM EDT
Short corrections in the title would be nice as well

- Ken -
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993

[ Reply to This | # ]

Off-topic here
Authored by: alisonken1 on Thursday, July 24 2008 @ 10:01 PM EDT
If using clickies - change to "HTML Mode" and follow the guidelines on
making clickies - like <a href="">Groklaw

- Ken -
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993

[ Reply to This | # ]

It's all about page hits
Authored by: The Mad Hatter r on Thursday, July 24 2008 @ 10:06 PM EDT

If you are cynical. An article like that will definitely get a lot of page

As for advocating his position, we all do that, every day. As many of you know,
I think that all Patents should be abolished. I keep advocating this, and will
continue to advocate this. I know I'm right, and that the rest of you are
deluded <GRIN>.


[ Reply to This | # ]

Wrong analogy
Authored by: Anonymous on Thursday, July 24 2008 @ 10:32 PM EDT
It seems to me that a general purpose computer is to an algorithm as physics is to a physical device; it's the background against which the machine can be expected to function. It's what makes a program do something instead of just being something. The interesting question is whether a finite state machine--a particular finite state machine--counts as a "particular machine".

(FWIW, I think that the patent system is horribly broken in many ways, but that there's nothing about software that makes patents any worse; except that it's especially easy to fool the examiners and the useful lifetime of an invention in relation to the patent term is worse. The fact that an ordinary practitioner in the field is likely to unwittingly infringe a ton of patents means that the system is mismanaged, and there are software patents describing extremely clever ideas whose disclosure it would be genuinely socially beneficial to promote, were it actually legally advisable to read patents and license ones that you would find useful.)

[ Reply to This | # ]

News Picks Threads Here
Authored by: artp on Thursday, July 24 2008 @ 10:52 PM EDT
Let us know which News Pick you are talking about.

And remember, that pick will scroll off the sidebar before we are finished
talking about it. So please use links!

Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

I WISH googles patents WOULD be wiped out
Authored by: Anonymous on Thursday, July 24 2008 @ 11:24 PM EDT
along with all patents on software, all patents on business methods, and in fact
(since I can't think of a single case of patents actually aiding innovation)
patents generally.

I can understand why a patent lawyer might view this as alarming. But the rest
of us should be cheering like mad.

[ Reply to This | # ]

Nuclear Disarmament?
Authored by: Observer on Thursday, July 24 2008 @ 11:31 PM EDT

The moment I saw the term "destabilize," I knew the article was going to be a heavily opinionated piece.

However, it still got me thinking. As much as I want to see truly innovative companies like Google succeed, would it really be a bad thing if the majority of software based "business process" patents were invalidated, and Google lost a large portion of its current patent portfolio?

I'm thinking it's a little like the old Nuclear Disarmament talks. Imagine if a bunch of little green men from Mars showed up with a device which, at the press of a button, could deactivate all existing nuclear weapons, and somehow prevent any new ones from being created. It wouldn't destroy all conventional weapons, so it wouldn't end all war on Earth, but it would completely take away the threat of any country launching a nuclear strike.

Google could certainly lose a lot of patents, but then again, so would all of its competitors, and Google would no longer have to thread its way through the "nuclear minefield" of software patents. Of course, Google has so much money that I'm sure it spends a lot less time worrying about patents than a smaller start-up might, but I've got a hunch they wouldn't be too scared. The only people REALLY scared would be the patent trolls, and certain companies trying to hold on to their current outdated business models and scare potential innovators off through patent "sabre rattling."

The Observer

[ Reply to This | # ]

Google's view
Authored by: Anonymous on Friday, July 25 2008 @ 12:40 AM EDT
"Google's patents" are being used as an example of patents in general.
But Google have some fine I.P lawyers of their own.

It would be interesting to hear Google's lawyers view of their patent holdings.
For example, were they mainly taken defensively? Would their business be
effected by no software patents, as claimed by this unrelated party? Would their
business be effected if independent discovery were allowed in the patent system?

[ Reply to This | # ]

Webster attended
Authored by: billyskank on Friday, July 25 2008 @ 03:38 AM EDT
I remember the article. He said the Bilski lawyer kept fielding abstract
questions from the judges who were trying to see the general picture, whilst the
poor guy only wanted to represent his client's interests.

It's not the software that's free; it's you.

[ Reply to This | # ]

Pharmaceutical patents
Authored by: kh on Friday, July 25 2008 @ 04:56 AM EDT
Pharmaceuticals may be the only area of patents where benefits outweigh the advantages but given the state of health systems world-wide and in the US in particular it's a pretty damning assessment. I would also wonder just by how much the benefits out-weighed the disadvantages, both to the companies involved and more importantly to us, people who may need treatment with said pharmaceuticals.

Even more of a worry is that the largest part of research in the pharmaceutical industry is publicly funded and much of the industry research (and patent claims) is on side issues.

The developing world is definitely not happy about the use of patents in pharmaceuticals. Here are a couple of links about pharmaceuticals, bio-piracy and patents:
H5N1 in Indonesia

PS: this becomes an issue for software because in some ways the patent regime in the pharmaceutics industries is being held up as an example for other industries like software. Big pharma is also out there fighting for patent rights.

[ Reply to This | # ]

PJ Are You Wearing Blinkers? ;)
Authored by: Anonymous on Friday, July 25 2008 @ 01:15 PM EDT
PJ I have to wonder whether you wear horse blinkers or not. You state:
Lawyers do write articles sometimes because they know judges can be influenced by what they read.

Is that the only action that "influences" judges in the USA (and elsewhere)? Although you keep insisiting that politics has no place on this site; it is obvious to anyone without blinkers on , that the justice system, the courts, the judges, the attorney generals are all heavily influnced by politcal parties and by the political elte.

Future judgements will continue to be bought more often than not.

[ Reply to This | # ]

Pharmaceutical patents are special
Authored by: Anonymous on Saturday, July 26 2008 @ 01:54 AM EDT

Pharmaceutical patents are a special case. They can be valuable when very narrow, for a specific molecule, because FDA approvals are for a specific molecule. The regulatory system makes such narrow patents valuable.

For almost everything else, copies of the invention need not be exact copies to be commercially valuable.

[ Reply to This | # ]

PageRank appears to be the standard scientist status ranking
Authored by: Wesley_Parish on Sunday, July 27 2008 @ 07:43 AM EDT

It appears to me at least, that the PageRank algorithm is little more than the standard method the average scientist has used since the beginning of scientific publication, to rank other scientists' work. So this is my comment on the PatentLO blog:

Excuse me, folks, but from what has been disclosed of the Google Page Rank algorithm reminds me of the method many scientists use to rank a fellow scientist. It would be obvious to the PTO, too, excpet they weren't thinking at the time they read "the first claim in U.S. Patent No. 6,526,440 (issued Feb. 25, 2003), which discloses an improved search engine technology, does not even expressly include the limitation that the process must be computer implemented".

Because, if as I guess, it is merely the computer-implemented form of status ranking used by academics from time immemorial - your value as a scientist is ranked by your peers in that if they quote your material, they value it; if they don't, they don't value it - then the patent is valueless and void, because it is a method of status ranking as old as scientific publication.

I wish Prof. Duffy would consider whether or not this online publication is going to contribute to his status ranking, and is thus in material breach of the Google Page Ranking patent. And what is the sole difference between being ranked by one's peers on the number of links created by citations by one's peers, and a computer ranking web pages on the number of links created by other pages' authors?

How much, Prof. Duffy, are you willing to pay Google, to have other academics rank you in academic publications? Just to prove you can put your money where your mouth is?

A trifle ad hominem at the end, but I felt that point had to be driven home.

finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

Google's Patents Are About to be Killed? Calm Down, Everyone. It's Just Advocacy, a/k/a FUD
Authored by: Anonymous on Monday, July 28 2008 @ 02:36 AM EDT
Funny that another search engine is now reported, see
Cuil is founded by ex-google and IBM.
Cuil works and is decent. OpenBSD gave no answer, but did.
Theo de Raadt, was tagged with search under FreeBSD. Interesting how some
things get marked up.
Point: index is ok, but still lacking some serious fundamentals!

[ Reply to This | # ]

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