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How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Monday, July 15 2013 @ 06:41 AM EDT

How Many Patents Must Be Read to Clear All Patents Rights on Software?

By PolR

There is a popular theory about the ills of the patent system that there is nothing wrong with software patents. According to this theory, all the problems are due either to bad actors called trolls or to poor quality patents. Then, as the logic goes, the patent system may be fixed by curtailing the activities of bad actors and by improving the quality of the patents.

Is that so?

Let's imagine all these reforms are a huge success. The patent office diligently makes thorough and accurate prior art search on every patent. No questionable or overly broad patent is ever issued. There are no abusive patent infringement lawsuits because no one ever sues unless he owns a valid patent and the defendant actually infringes. Unfortunately, this dream world is not yet ideal. There is one remaining problem. The cost of verifying that a piece of software doesn't infringe any patent is prohibitive. This alone ensures the patent system cannot function as intended.

People and operating companies who make, use, or sell goods and services can never be assured to own all rights to the goods and services they bring to the market because they cannot afford the costs of verifying that no patents are infringed. Those who make a business of suing patent infringers for profit have no problems finding targets. Operating companies can't help but infringe and be liable for it. The only way out is to stop writing software. This is like making house builders unable to pay the bill for checking they have all rights to the land before they build houses. They must either give up housebuilding or go ahead without clearing the rights hoping they are not sued. This nonsensical legal framework is harming innovation and the broader economy.

It is costly to verify that no patents are infringed because too many patents must be read to find out which ones are applicable. Let's assume a patent attorney works 2000 hours in a year.1 Let's assume this attorney needs 10 minutes on average to read a patent. If this attorney does nothing but read patents he can read 12,000 patents per year, or 1,000 per month. This is a significant speed limit because of the large quantity of applicable patents.

Here are some numbers given to us by Mark Lemley. Just reading the patents is several months if not years of work:2 (footnotes omitted)

A few examples: 3G wireless technology was subject to more than 7000 claimed "essential" patents as of 2004; the number is doubtless much higher now. WiFi is subject to hundreds and probably thousands of claimed essential patents. And the problem is even worse than these numbers suggest, since both 3G wireless technology and WiFi are not themselves products but merely components that must be integrated into a final product. Some industry experts have estimated that 250,000 patents go into a modern smartphone. Even nominally open-source technologies may turn out to be subject to hundreds or thousands of patents.

These numbers severely underestimate how many patents must be read because they count only patents that are applicable to the software. The costs are driven not only by the applicable patents but also by patents which don't apply but still need to be read to verify they are indeed inapplicable. There are presumably many more patents in the latter category than in the former.

It would be helpful if some competent scholar were to estimate how many patents must be read to clear all rights to some piece of software. The best I can produce is hypothetical scenarios. Let's consider a very small patent clearance project where a maximum of 6,000 patents are read. This inexpensive scenario requires six months of work and costs $91,000 assuming the patent attorney is salaried staff.3 A larger project where a maximum of 240,000 patents are read requires 20 attorneys working a full year and the costs rise to $3.64 million. I believe these two scenarios give us a range where the majority of patent clearance projects would probably fall. But a well-researched study is needed if we want more reliable numbers.4

This is just the cost of reading at a speed of 10 minutes per patent, without taking breaks, writing reports or doing anything else. In contrast, clearing all copyrights to software usually requires only a few hours or even minutes of work. In most circumstances it suffices to verify there is an adequate license for all code that isn't developed in-house. Copyright clearance is affordable while patent clearance is not.

This estimation is for a single clearance event. But patent clearance is not a one time event. Most companies develop several programs. Also, many programs are constantly modified and improved. Every modification may potentially infringe on some patents. Each new version of each program requires its patent clearance and these intolerably high costs accumulate.

There are nearly 15,000 software development companies with annual revenue of 500,000$ or less.5 For these companies five inexpensive patent clearance events would wipe out one year of revenue. One large project costs over seven years of revenue. These software developers are unable to own all patent rights to their own software.

Why do so many patents need to be read? Let's illustrate the point with an analogy. Imagine an hypothetical world where written English is patentable. Everyone writing text must verify he doesn't infringes on anyone's rights by searching some centralized database. In this hypothetical world there is no independent creation defense. Also, you don't need to copy verbatim to infringe. Different but equivalent text infringes. If you want to write some text you must verify there is no equivalent text in the database. This applies to single sentences or combination of sentences. This applies to every paragraph and combination of paragraphs. The same applies to sections, chapters and the work as a whole. How many searches are needed to clear any text of substantial size?

Fortunately copyright law doesn't impose this burden on us. But patent law does impose such a burden on software authors. Source code is text. Lines of code may be combined to make more elaborated code, a bit like sentences can be combined to make larger units of text. Patents are applicable to simple operations that may be written in a handful of lines, like the infamous XOR patent. Or they may be applicable to entire systems. Or they could be applied to anything in between. A developer must identify all portions of his software that could be interpreted as a patentable method and clear the corresponding rights. There is a large number of such portions in a piece of software. Hence, a large number of patents needs to be read.

Also, the burden spreads to the whole society because software development is done by a wide range of individuals and organizations.

  • Everyone interested in learning how to program can do it. Computers are inexpensive and quality software development tools may be downloaded at no costs from the Internet.

  • Free and open source software (FOSS) is often developed by individual volunteers.

  • The size of software companies range from a single individual working as a contractor to large multinational corporations.

  • Software development is not restricted to software companies because all employers of a sufficiently large magnitude have an internal IT department that develops software in-house.

  • Consulting firms or individual contractors may be hired to develop software.

  • Several pieces of software are customizable, including those for making web sites. It is possible to modify or extend their functions by writing code to that effect.

All these factors combine to make software development a very common activity in all areas of the economy. The costs to society of checking all patents rights for all software development is prohibitive.

If we assume all US corporations require a total of 300,000 patent clearance events per year and each event conforms to the above inexpensive scenario where 6,000 patents need to be read, 150,000 patent attorneys would be required and the total cost is $27.3 billion.6

Please remember, this is just the costs of reading patents to find out whether they are applicable.

For comparison there are roughly 41,000 patent attorneys and patent agents in the US7. More than 3.5 times this number would be needed just to read software patents during clearance projects. In 2011, the research and development spending in the United States for information and communications technology was $126.3 billion.8 Our estimated costs for reading patents is roughly 22% this amount. These numbers show the financial burden is intolerable.

As high as it is, this estimation is still unrealistically low for many reasons. There are roughly 100,000 employers in the US with over 100 employees.9 Most of these employers have an internal IT department that constantly writes new programs. The largest employers write dozens of programs every year. Some of these employers constantly write software for the purpose of selling it. These 100,000 employers on average surely need more than 3 patent clearance events per year because they surely write in-house an average of more than 3 pieces of software per year. This alone guarantees there should be more than 300,000 patents clearance events per year. Then there are the patent clearances needed by the 1,150,000 companies with 10 to 99 employees.10 Then there is the need to maintain the existing software. The code must regularly be modified to fix bugs, adapt it to new regulations or adapt it to changes to the business requirements. All the modifications require patent clearance to make sure they don't infringe. Finally, the estimation is based on an inexpensive scenario where only 6,000 patents are read per clearance event.

I computed a theoretical scenario based on unrealistically low assumptions. Of course it would be better if someone produced a well-researched study. I hope someone will eventually to do so.11

How do operating companies currently clear patent rights? According to Mark Lemley they don't.12

[B]oth researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT. Ignoring patents, then, may be a "workaround" that allows the innovation system to function in the face of overbroad patent protection.

The efforts of the President Obama to curtail overbroad functional claiming are welcome. The president tackles two real problems: a certain type of wrongly issued patents and the economic damage caused by patent trolls. But the problem of clearing the rights still remains because for purposes of calculating the costs it doesn't matter whether the patent is broad or narrow. Either way the patent must be read to make sure it is not infringed.

The source of the clearance problem may be tracked to this phenomenon mentioned in a report to the White House:13

[A] single piece of software or website might have several thousand "functions" that could be claimed in as many patents.

Thousands of patents must be read because there are thousands of patentable functions in a single piece of software. Even if the patents are narrowed down the specific implementations of the functions, all patents that may potentially be applicable to one of these functions must be read. It is not possible to read only the patents that are actually infringed because there is no way to tell which patents are infringed without first reading them.

This hinders innovation because the innovative parts of a computer program are located in only a few of its functions. The bulk of the functions are old. An innovator may obtain some patents on the innovative parts of his software. This does not suffice. The patent rights to thousands of old functions must also be cleared, because otherwise the innovator doesn't have all rights to his own software.

Here is another point of comparison. Defendants and licensees paid patent assertion entities (i.e. patent trolls) $29 billion in 2011.14 Recall that my low-ball estimation of the costs of reading patents during clearance is $27.3 billion. These costs are comparable to the direct costs of patent trolling. The only reason the economy doesn't bear these costs is that, as Lemley notes, everyone ignores patents. This unhealthy solution makes every software author vulnerable to patent trolls. And it would do no good to force everyone to clear their rights because the economic impact is comparable to tolerating patent trolls.

How can we solve this problem? There is only one way. We must eliminate or at a minimum drastically reduce the number of software patents. Yet, this is exactly what Circuit Judge Moore's dissenting-in-part opinion in CLS Bank v. Alice Corporation, in which Chief Judge RADER and Circuit Judges LINN and O’MALLEY joined, is afraid of:

If all of the claims of these four patents are ineligible, so too are the 320,799 patents which were granted from 1998-2011 in the technology area "Electrical Computers, Digital Processing Systems, Information Security, Error/Fault Handling." See U.S. Patent & Trademark Office, Selected Technology Report, available at
http://www.uspto.gov/web/offices/ ac/ido/oeip/taf/ec_dps_is_efh.htm. Every patent in this technology category covers inventions directed to computer software or to hardware that implements software. In 2011 alone, 42,235 patents were granted in this area. Id. This would render ineligible nearly 20% of all the patents that actually issued in 2011. If the reasoning of Judge Lourie's opinion were adopted, it would decimate the electronics and software industries. There are, of course, software, financial system, business method and telecom patents in other technology classes which would also be at risk. So this is quite frankly a low estimate. There has never been a case which could do more damage to the patent system than this one.

These Federal Circuit Judges clearly think that invalidating so many patents would be a bad thing, imagining negative consequences on innovation and the economy. This view is backwards. It is hard to see how any possible benefits of software patents could offset the harm of a system where operating companies are unable to clear patent rights to their own products.

That's looking at some theoretical numbers in a current scenario. Now think about the future numbers, as Carl Hewitt does in his talk, The Future of IP Software (here on YouTube), when computers will be able to write and file patent applications by the thousands on all known IP, and you can see that his prediction that without pruning back the system it will fall under its own weight is quite realizable, in fact inevitable.


1 This is 40 hours per week, 50 weeks per year.

2 See Lemley, Mark A., Software Patents and the Return of Functional Claiming (July 25, 2012). Stanford Public Law Working Paper No. 2117302. Available at SSRN: http://ssrn.com/abstract=2117302 or http://dx.doi.org/10.2139/ssrn.2117302 pages 24-25.

3 According to Patently'O the median salary of a patent attorney is roughly $130,000. Adding 40% for benefits and overhead gives $182,000 annually. A six-month project is half this amount.

4 To the best of my knowledge, the study that comes closest is Mulligan, Christina and Lee, Timothy B., Scaling the Patent System (March 6, 2012). NYU Annual Survey of American Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract_id=2016968. This study supports the view that patent rights cannot be cleared because the number of patents that must be read is too high. But it doesn't produce the kind of numbers I contemplate in this article.

5 Source: Great but Not Big.

6 This is the result of simple arithmetic. A single event takes six months and costs $91,000. Multiplying by 300,000 event in a single year gives the stated numbers.

7 Source: the USPTO.

8 Source: Select USA.

9 Source: US census.

10 Source: US census.

11 To the best of my knowledge, the study that comes closest is Mulligan, Christina and Lee, Timothy B., supra.

12 See Lemley, Mark A., Ignoring Patents (July 3, 2007). Stanford Public Law Working Paper No. 999961; Michigan State Law Review, Vol. 2008, No. 19, 2008. Available at SSRN: http://ssrn.com/abstract=999961 or http://dx.doi.org/10.2139/ssrn.999961.

13 See Patent Assertion and U.S. Innovation, (PDF), Executive Office of the President, June 2013, page 8.

14 See Bessen, James E., and Michael J. Meurer. The Direct Costs from NPE Disputes. Boston University School of Law, Law and Economics Research Paper No. 12-34, June 28, 2012.


  


How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR | 190 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Reduce the number of patents per technology
Authored by: AlexWright on Monday, July 15 2013 @ 07:34 AM EDT
Simple solution:

Limit the number of software patents per device. That way,
you won't have to spend ages checking them all.

"New patent on a mobile phone? Sorry sir, the allocation has
already been filled."


As a starter, I'd suggest the number be zero :-)

[ Reply to This | # ]

Corrections here please, if needed
Authored by: tiger99 on Monday, July 15 2013 @ 07:42 AM EDT
Please put the nature of the correction in the title of your post to assist PJ.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Monday, July 15 2013 @ 07:44 AM EDT
The penalty for posting on-topic in this thread involves reading every software
patent that applies to smartphones, which will take you a very long time!

[ Reply to This | # ]

Newspick discussion here please
Authored by: tiger99 on Monday, July 15 2013 @ 07:46 AM EDT
It is very useful to mention the Groklaw newspick item in the title of your
post, and make a link to the article so that it is accessible even after the
Newspick scrolls off the bottom of the homepage.

[ Reply to This | # ]

Comes goeth here....
Authored by: tiger99 on Monday, July 15 2013 @ 07:48 AM EDT
If you are helping to transcribe these documents, which tend to be somewhat
embrassing to a certain Monopoly, you know what to do.

[ Reply to This | # ]

This article should be compulsory reading.....
Authored by: tiger99 on Monday, July 15 2013 @ 08:01 AM EDT
.... for all judges and politicians, because they urgently need to know the true economic facts of what the patent system is doing. PoIR has not overstated the case, the true impact may be unknowable, but certainly vast.

If patents have to be ignored because it is impossible to read them all, the law as it is can't work. It is rather like having speed limits without a speedometer in every car, so people can't hope to comply with the law. If law like that doesn't work, it has to be changed.

[ Reply to This | # ]

another danger - willful infringement
Authored by: Anonymous on Monday, July 15 2013 @ 08:48 AM EDT
Don't forget, doing this patent clearing
event would triple your damages due to
willful infringement on the likely event
that you missed one or interpreted a
patent differently than the court.

[ Reply to This | # ]

Re. The xor patent
Authored by: Anonymous on Monday, July 15 2013 @ 09:17 AM EDT
Ah, a perfect example of "bamboozle them with bullshit"! Add
enough tech-type drawings, and enough tech language, most
patent examiners will fall into the "If I don't understand
it, it must be patentable" hole...

[ Reply to This | # ]

Another Great Read by PolR
Authored by: 351-4V on Monday, July 15 2013 @ 09:18 AM EDT
Thank you so much for your insight. Well done. I especially liked how you brought out the point that the cost of patent clearing is somewhat equal to the cost of the patent trolls and therefore one must ask "What good would eliminating the Patent Trolls actually accomplish?" Answer: Nothing really. You make it clear that such thinking is akin to the story of the little boy plugging the leak in the dike with his finger. Sounds good but it's just not goint to work in the real world.

Thanks again for posting this.

[ Reply to This | # ]

Simply ignoring patents...
Authored by: Gringo_ on Monday, July 15 2013 @ 10:36 AM EDT

...may be what prevents the patent system from crushing innovation in component industries like IT. Ignoring patents, then, may be a "workaround" that allows the innovation system to function in the face of overbroad patent protection.

Surely he is not suggesting that as a solution. It must be more of an observation that in the face of overbroad patent protection this is what people are doing. However, he indulges in the fantasy that software patents can be fixed by being narrowed. Clearly patents can be narrowed by eliminating functional claiming, or even going as far as requiring algoithms descibed in pseudo code. But what about the tens of thousands of software patents that have already issued? And I have not seen anything by him about solving the "obviousness" problem, which walks hand in hand with independent discovery.

We can assume that Lemley understands the packet thicket problem. He must also be aware that though narrowing patents may reduce it somewhat, it will nevertheless remain a major feature of the patent system for years, even decades to come. By the time all current patents have expired, even with narrower claiming, the number of patents will continue to grow. From this logic I can only conclude that he intends that people should go on using the "workaround" of ignoring patents during product development, and thereby is advocating disrespect for the law.

What a horrible idea! In the first place, respect for the Law is fundamental to civil society. A good citizen should not be comfortable with the fact she is ignoring the possibility she infringes other people's patents any more than she should be comfortable with infringing copyrights, shoplifting, or any other form of misappropriating other people's property.

If copyright laws are unjust, this breeds disrespect for copyright laws and civil society suffers because of it. If it is impossible to comply with patent laws, something has to give. Either individuals and small independent companies have to give up technology oriented business and leave it to a handful of mega corporations, or the law must change. To suggest that people blind themselves to their own actions and deny responsibility for their actions is to undermine civil society. For a lawyer, of all people, to suggest ignoring patents, then, may be a "workaround" is shocking. One would assume that lawyers know better than anyone that civil society depends on willful, good faith participation and fundamental respect for law on the part of all companies and citizens.

Finally, I wish to comment on this curious expression employed in the above quote: "the innovation system". Whatever does that mean? Does he think the patent system is "an innovation system" of some sort? Does he think that patents spur innovation and that without patents, there will be no more innovation? On what evidence does he make such a bizarre statement? Because David Kappos said so?

I am an independent software developer, and I innovate every day as I write code. I have no patents and never will. I don't even think about them. Patents have nothing whatsoever to do with my innovations. If big corporations give up "innovating" because they can't get software patents any more, I and millions of others just like me will step right in and go on innovating and churning out innovative products. It may require some adjustments on the part of VCs, but it can't be any worse for them than it is now, with the spectre of trolls wiping out all the value in their investments. In fact, I predict that if all software patents were wiped out overnight, the VCs would go right on funding start ups with a renewed vigor.

[ Reply to This | # ]

Patent trolls
Authored by: Gringo_ on Monday, July 15 2013 @ 11:04 AM EDT

Many innovative solutions have been proposed to deal with the patent troll problem (Sorry, I'm not going to use euphemisms here.) Unfortunately, every solution I have seen so far fails to address all circumstances, such as outsourced trolling by the big companies such as Microsoft and Nokia.

The problem is in defining exactly what a patent roll is. One man's patent troll is another another man's "Patent liquidity market". In the end, the definition of a troll will suffer interference from special interests who fund the people of the Congress and Senate. To not accept this as a fact of American political reality is to bury your head in the sand.

The only thing I know guaranteed to stop patent trolls who depend on software patents dead in their tracks is to eliminate software patents. There would be no need to define who is a troll. Nobody could claim discrimination or favouritism. In one fell swoop, they are gone in a legislative flash! Suddenly a huge economic burden would be lifted from our collective shoulders. Not only the direct cost of trolls, but the total cost to society of maintaining a patent system for software would vanish. The gates of innovation would be flung wide open. We would experience a technological revolution like we have never known.

[ Reply to This | # ]

Just make the patent system follow the patent law
Authored by: Ian Al on Monday, July 15 2013 @ 11:06 AM EDT
Groklaw has reported on many patent law suits. They all follow the fashion and
argue about how many IT CEOs one can get on the head of a pin.

We really need experts on the fact of IT and experts on patent law to get
together, read the Supreme Court findings and tell the 'system', what the law
actually means.

Oracle accused a smartphone of infringing on its programming methods. That
cannot be found in patent law.

Apple accuse smartphones of infringing on patented machine improvements by using
components which cannot exist. That cannot be found in patent law.

Microsoft accuse everybody of needing to pay for the use of their patents. They
refuse to tell us which patents and so we cannot know whether law agrees with
them. Personally, I suspect the laws about blackmail and extortion are
applicable to Microsoft, but can't do anything about it.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

All of them
Authored by: Anonymous on Monday, July 15 2013 @ 11:38 AM EDT
>How Many Patents Must Be Read to Clear All Patents Rights on Software?

All of them (or at least all the non-expired ones).

"All of them" includes the "pending" ones that you aren't
allowed to read yet.

If you don't, you are taking a risk.

If you are risk-adverse, only publish software that has clear, unencumbered
prior art that pre-dates any possible existing or pending patent. In other
words, spend your time re-writing decades-old stuff and don't put anything new
in your programs.


This isn't just for software, but for anything else you might want to market.

[ Reply to This | # ]

  • All of them - Authored by: Anonymous on Tuesday, July 16 2013 @ 01:56 PM EDT
How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Authored by: Anonymous on Monday, July 15 2013 @ 11:45 AM EDT
You've missed a big problem.
All that money you spent on searching and reading? It's all for naught the following Tuesday when the USPTO issues more patents (you can request no publication at 18 months when you file the application).
That's another reason a lot of (Silicon Valley) companies don't do clearance searches -- the results are only good for a week, at best.

Disclosure: I'm a patent attorney with a CS and Physics background, and a Groklaw reader for many, many years.

[ Reply to This | # ]

How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Authored by: cassini2006 on Monday, July 15 2013 @ 11:59 AM EDT
The cost of verifying that a piece of software doesn't infringe any patent is prohibitive.

The problem is that it is impossible to verify that your software doesn't infringe on a patent. Four key problems are quickly encountered:

1. Most software patents are deliberately written in an obtuse manner. This permits them to lay claim to ideas that were not originally envisioned when the patent was issued. It is frequently impossible to understand, from the as-written patent claims, if proposed software infringes. If a lawyer cannot do this test for sure, given the size of the patent database, how can a computer do this verification?

2. Often, patents are dependent on a realization into a product (computer). On this basis, a software program can never infringe. However, if the software forms a substantial portion of a product being used, then the software company can still be liable. There is a panoply of devices (cell phones, tablets, computers, and possibly watches in the future) that can run complex software. Given the multitude of devices, how is one to verify that the dominant use of a particular piece of software on a device will violate a database of possible patent claims?

3. The law is fuzzy. Software is not. Neither Samsung nor Apple know for sure if their patents are valid, or for sure that a court will find that they were violated. Given this natural "fuzziness", how can patent violations be verified?

4. Many patents are published after the competing software has already been developed and is shipping. As such, it is necessary to verify that a piece of software does not conflict with a patent that may not have been issued (or even written) yet. How do you deal with unexpected, submarine and/or torpedo patents?

Given the nature of problems 1 to 4, patent verification must be an imperfect art. This creates additional problems. Firstly, even if you do verify and verify correctly, then you can still be sued. The resulting litigation fees can bankrupt the company, which may be the competitors real goal. Secondly, with the treble damages rule, if a company attempts to do a patent verification, and it is done incorrectly, then the company risks greater penalties for attempting the verification. As such, it is actually cheaper to ignore the issue of patent infringement, and deal with patent licensing issues once the issues occur.

The biggest reason for not having patent verification is that: if good patent verification existed, trolls would use it to identify all infringements, and we would quickly discover that the patent office has made it impossible to develop anything. The current patent system depends on the fact that no one knows what the patents really protect, so only issues that people really care about will be litigated. If everyone knew about how many patents were violated, each and every day, then gridlock would result.

[ Reply to This | # ]

Independent-invention test
Authored by: tknarr on Monday, July 15 2013 @ 01:25 PM EDT

Perhaps what the patent system needs is an independent-invention criteria for the "obvious to a PHOSITA" test. That is, if there are more than N thing (where N is small, say 2-3) which are alleged to infringe on the patent and they were invented independently without reference to the patent or each other, this is deemed prima facie evidence that the patent's subject was obvious to people skilled in the art. The burden is then shifted to the patent-holder to either a) narrow their claims so their patent does not cover those things or b) somehow prove that all of the inventors were somehow exceptional (their invention of the patented subject can't be used to show this, it has to be done by showing that the rest of their work is beyond what others in the field are routinely doing). That'd put the holders of bogus patents (and IMO most software patents are bogus due to being non-novel and/or obvious) into a bind: if they don't assert their patents then they can't make money off them, but if they do assert them they're virtually handing their victims a perfect defense.

To make the defense even nastier, I'd add a provision in law that if a patent is held to be obvious or non-novel under this test than any and all prior settlements based on alleged infringement of this patent are held to be legally invalid and the alleged infringers entitled to a return of all monies paid under those settlements. If the settlement covered more than just the patents in question the patent-holder may ask the court to place the funds in escrow while the parties negotiate a new settlement excluding the patents in question, but the burden is on the patent-holder to describe exactly what the settlement covered and exactly how the money was allocated. The patent-holder would, of course, be on the hook to explain things if it gave conflicting valuations to it's patents in different settlement deals, and infringers would be entitled to bring up those other valuations as a basis for valuation in their case (the patent-holder would not be entitled to dispute those valuations, since the patent-holder was the one who made those valuations).

[ Reply to This | # ]

10 Minutes per patent...
Authored by: Tilendor on Monday, July 15 2013 @ 01:31 PM EDT
PoIR is making some really great points, and achieved some
numbers which demonstrate the ridiculousness of clearing
your patents. I think he rests there because hes made his
point, but I just want to call out the 10 minutes to clear a
patent.
IANAL, but I doubt any lawyer would deem 10 minutes enough.
Especially to compare 1,000 of features or functions to all
of the claims in a patent. I don't know what a more
realistic amount of time is, but it takes these horrible
numbers and adds a couple of magnitudes to them.

The patent system for software is truly ridiculous.

---
~Tilendor

[ Reply to This | # ]

How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Authored by: eric76 on Monday, July 15 2013 @ 02:54 PM EDT
I've suggested several times over the years that the number of patents issued
each year should be limited. Rank all patent applications for the year, issue
patents for the top 1,000 applications from all fields, and deny patents on all
the rest.

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The other reason for not reading software patents
Authored by: ailuromancy on Monday, July 15 2013 @ 04:07 PM EDT

Pretend I just read and understood every single patent. Because I am such a speed reader, I have also read enough to know which ones I could invalidate with prior art. My understanding of patents is so thorough that I can recognise which ones I could, with certainty, get invalidated for other reasons. After this prodigious work, I notice a hole. There is actually a small, useful bit of software that does not infringe any existing possibly valid patent. I sell this software, and make a profit.

On the next day, I get sued for patent infringement anyway. Pretend I am lucky and I 'win'. What do I actually win? The troll vanishes without paying my legal costs and I get ten more patent infringement suits.

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This is the equivalent to 300,000 new laws to obey
Authored by: davecb on Monday, July 15 2013 @ 04:34 PM EDT

Poir wrote

If we assume all US corporations require a total of 300,000 patent clearance events per year and each event conforms to the above inexpensive scenario where 6,000 patents need to be read, 150,000 patent attorneys would be required and the total cost is $27.3 billion.

Consider the problem of a legal system where ignorance is not an excuse, and 150,000 ordinary attorneys would be needed to review any business transaction.

Worse, consider such a situation where it takes 150,000 trained criminal lawyers to review any action by a citizen...

IMHO, allowing a scheme by which ordinary actions are characterized as "inventions" is equivalent to allowing private companies to propose and pass private laws, and enforce them retroactively.

It is not clear to me that creating a semi-infinite set of private laws is something that is authorized by the patent act, much less the U.S. Constitution!

--dave

---
davecb@spamcop.net

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"... it would decimate the electronics and software industries. " Arrant nonsense.
Authored by: OmniGeek on Monday, July 15 2013 @ 04:37 PM EDT
I'm an engineer with decades of experience working (and writing code) in those
industries, and I can say with assurance that invalidating software patents (or
even ALL patents, to go to the absurd limit) would not impair the progress of
the electronics and software industries to any significant degree. The pace of
innovation is such that patents really play no constructive role any more.

The judge has no understanding of the industries he's talking about.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

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'The patent office diligently makes thorough and accurate prior art search on every patent'
Authored by: esni on Monday, July 15 2013 @ 04:57 PM EDT
The patent offices make money when patents are issued, not when they are
rejected.

They will therefore lean against accepting any kind of terrible rubbish.

Perhaps you should deposit 5 or 10 times the fee when you apply. If it is
granted you get the excess back. If not you loose the lot.

---
Eskild
Denmark


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It isn't just the number of patents you need to look at.....
Authored by: Anonymous on Monday, July 15 2013 @ 05:56 PM EDT
.... it is also the fact that unlike patent for physical
inventions, the claims are completely abstract from the
embodiment (the code).

To determine whether or not there is prior art in existence
in software, it is necessary to reverse engineer existing
code in order to come up with the patented concepts that it
can invalidate. The effort to do this reverse engineering
requires many times more effort than coming up with the idea
in the patent in the first place, and more effort than
coding from scratch.

The only time the reverse engineering effort might be
worthwhile would be when you land up in court being sued for
infringing a software patent, which is why
programmers/developers never ever look up patents or license
patents in order to implement software. Instead they write
the software without looking up any patents, and when
patents are filed, they are prepared (generally by lawyers
not programmers) in order to sue or countersue others, not
to implement into software.

Is there anybody who has ever developed software by
implementing a patent? I would guess that this has never
ever happened in the history of human experience.

Another problem is that, most of the prior art is secret and
cannot be searched because the source code is proprietary
and therefore cannot be searched.

So there you have it. Software can be patented, but prior
art cannot be searched because most of the existing prior
art is hidden and so not available for searching, and what
can be searched is so abstracted from the claims that are
made in software patents that it takes far more effort to
search than to come up with the patent which is being
invalidated, or writing the code which is being sued over
in the first place. Add to that the fact that software
patents are not actually used by programmers for anything
useful, only to sue others, and it should be clear to anyone
why software patents make a complete mockery of sense or
purpose.

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How to collect some real-world stats
Authored by: Anonymous on Monday, July 15 2013 @ 07:36 PM EDT
I have a suggestion on how to get
a ballpark figure on a place to
get data on much software is
written- the various "app stores"
published by the big mobile
vendors.

How many apps are in the Google
Play market and iTunes app store?
There's a concrete number on the
number of "new programs" that are
written, (if you include updates,
then you also have a number for
program modifications)

Take that 1.7 million programs,
and multiply it by 600 hours of
patent attorney time, and you have
a very large number.

--Jpvlsmv, not logged in

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What someone pro-patent might say
Authored by: Anonymous on Monday, July 15 2013 @ 08:15 PM EDT
A pro-software-patent person might say:
1) If you really cut down on the issuance of so many
patents, are you still producing 1000 software patents per
month?
2) If you are significantly improving the quality and
reducing the scope of the issued software patents, does it
still take 10 minutes for each one to determine whether you
infringe?
3) By reading so many patents, aren't you improving your
knowledge of the field and allowing yourself to come up with
more innovative thinking?
4) Surely once you have read a patent, you remember the
knowledge you gained from it and so don't need to read it
again to determine if the next piece of software you write
is infringing?


....
I mean, I think most of those arguments are wrong, but its
the kind of thing you could expect to see if you posted this
article on IP Watchdog or similar...

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Actuallly more impossible...
Authored by: eachus on Monday, July 15 2013 @ 09:18 PM EDT
Ignoring for the moment the issue of the number of software patents, the size of many programs makes it impossible to clear the software against even one patent.

In theory you could break the patents down into manageable groups and give each group to a separate lawyer. But how can that lawyer check the software against the patent? The patent may be violated in one small section of code, possibly even in third party software. But much more frequently, a patent's claims will only be violated by several parts of the software acting together (emergent behavior). This can include third party software, and even worse, third party software from multiple vendors where you do not have access to the source code.

Having access to "sanitized" third-party software doesn't help without a source license. You can't tell if that software fills some but not all of any one claim, and additional software includes the missing pieces. So two non-offending libraries can result in an infringing program. How can any number of patent lawyer hours spent reading patents detect this problem? It can't. Even if all of software developers are patent experts in the narrow field which their software is written to deal with, put together an OS or even a large application, and emergent behavior will result in undetected violations.

One last point, let's assume that someone tries to write a program that compares source software to patent claims and returns safe, violation, or unknown. Anyone with a theory of computation background can see that writing such a program is trivial for some potential patents. It will have to return unknown for any software which implements a partial function. (For those without a ToC course, any code with a backward pointing goto or a while loop is probably a partial function. Complete functions are those that can be shown to terminate, for any input, in a finite number of steps. In other words, most common software programs are partial functions.)

Even worse, many, many programs contain extension capabilities. Any emulator would have to result in violation for any software patent since, with the right user input, it will result in a patent violation. One final bit of fun. If courts were willing to accept that code that returns a different result than the patented code for some input does not violate, then add one known violation and go happily on your way. (As an example, many versions of make when called with the line: make love will printout not war? A patent on make functionality would have to fail against those versions, as they do not correctly make any source file named love. ;-)

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  • This - Authored by: Anonymous on Tuesday, July 16 2013 @ 06:36 PM EDT
Book by Rózsa Péter "Recursive Functions in Computer Theory"
Authored by: Anonymous on Monday, July 15 2013 @ 09:54 PM EDT
I am currently reading the above book. I have it in my library at home. Rózsa Péter was a mathematician who died in 1977. Those of us who have been around long enough would know of the Ackermann function (more correctly known as the Ackermann-Péter function). In the preface of her book (which she wrote) are the following paragraphs.
The action of a computer can always be thought of as a process such that in response to given input data, the machine produces certain outputs. Since both the input data and the sequential output of the results can be encoded into natural numbers, it follows that the functioning of a computer can always be considered as the computation of a value of a numeric function. With the idealization that the contents of the computer store are unlimited, it can be shown that the functions computable by a computer are identical with the class of functions known as the "partial recursive functions".

Therefore if we study how the computation of partial recursive number-theoretic functions can be programmed, essentially all questions concerning the problems solvable by a computer will be studied. The above idealization (which will be assumed throughout what follows) always arises if a general mathematical theory is applied to practical problems. This is often expressed by saying "the infinite is a useful approximation to the large by finite"

Isn't it interesting that a woman long in her grave is still able to effectively call those who think computers don't deal in abstract mathematics as being silly.

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How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Authored by: Anonymous on Monday, July 15 2013 @ 10:20 PM EDT
"No. The lawyers read the patents. Developers write code. No
developer will spend months reading patents before writing
the code."

That's half the problem, isn't it? The idea of patent
protection and the current legal interpretation of 'person
who is skilled in the art' assumes that people skilled in
the art read the patents. A developer should know if what
they are writing infringes. However as you say, this is
literally physically impossible.

And so we get the situation that Lemley talks about: the
best and most efficient way to deal with the patent system
for 99% of developers is to ignore it until you are accused
of infringement.

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I agree with the premise, but have two problems with this article
Authored by: Anonymous on Monday, July 15 2013 @ 10:43 PM EDT
First we set out the ideal world, where we are not issuing thousands of bogus patents per year. Then we set out to test some 'optimistic' numbers, that seem to relate more to current 'bad' practice than the ideal scenario. That said, I don't buy 10-minutes per patent by a long way. I doubt that is anywhere near long to understand what has actually been patented, never mind apply a comprehensive knowledge of your own company's product against that for any violation, anywhere in your own extensive code-base. 10-minutes per patent is wildly optimistic! My second concern though, comes from these two bounding assumptions:
Let's consider a very small patent clearance project where a maximum of 6,000 patents are read.
A larger project where a maximum of 240,000 patents are read requires ...
How does the small project know which 6000 patents out of the potential pool for 240,000 patents are the right ones to read? I believe both projects will have to read essentially the same set of patents to evaluate risk, the difference in scale comes mostly from the larger project having a much larger codebase to validate against those patents. This is the problem with patents - I don't see how you can opt out of reading every single one, regardless of the scale of your project. So despite my initial concern on the numbers used, I believe these numbers are still wildly optimistic leaning *towards* the patent community!

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How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Authored by: Anonymous on Monday, July 15 2013 @ 10:56 PM EDT
The sheer number of patents out there is compromising more than the software industry. It's probably impeding business activity everywhere: http://ww2.roanoke .com/editorials/commentary/wb/297537

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There are a lot of drug patents too.
Authored by: Anonymous on Tuesday, July 16 2013 @ 06:10 AM EDT
Yet the drug companies manage to do right to operate studies.

This whole article is based on a silly premise. You dont have to read
every patent. You do a patent search and read the ones that appear
relevant from that search. And you dont read all of those. You start
with the claims. Only if those are close do you bother with the rest.

You can google to find anything else you want to find can't you?

Why do you pretent its so hard to google patents?

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Question for those who think a patent search is simple
Authored by: Anonymous on Tuesday, July 16 2013 @ 10:39 PM EDT
Here is the stereotype of a basic C++ program:

#include <iostream>
int main() {
std::cout << "Hello world!" << std::endl;
}

What kind of patent search do I need to perform before I know I can safely
distribute a compiled version of this program? Its function is to write the
text
"Hello World!" to the console where the user runs the program.

My program leans heavily on the standard library that comes with the
compiler. In turn, this will invoke an extensive set of features that can
handle
a large number of issues regarding writing strings in different national
conventions (is text read left-to-right, or right-to-left, in the users
preferred
language on their operating system - as this English string will always be
written left-to-right). There will be many clever ideas implemented in the
standard library to avoid creating too many objects that are not needed for
this specific program - I don't really need to know anything about the Korean
locale, so let's defer creating it until used. There are various memory
managers allocating memory and optimizing resources that I do not see in my
code, just to get this simple text onto the screen. All of this additional
library
code, that I did not write, is being bundled into my compiled program that *I*
will be liable for distributing.

What is a reasonable search to be confident I am free of patent violations? Or
is my defense simply that such a trivial program should be of no interest for
patent authors to sue over?

Honestly, I don't know how to safely evaluate this program against the whole
set of current (never mind pending) software and business method patents. It
would genuinely not surprise me if this did indeed violate a number of patents
that I would deem invalid due to obviousness, but mounting a defense against
such a patent would be beyond my means - especially as the intrinsic value of
a 'hello world' executable is worthless, the whole benefit of this program is as

a tutorial to instruct beginning programmers (and I really hope that in turn
does not infringe some business process patent for training and development
of new hires in technical positions...)

The fact that I cannot with confidence say that the most basic program I can
write does not infringe patents is a frightening thing, but it is the current
state of the industry, and the problem is getting harder the longer it takes for

the patent office to recognize this issue it has created.

I would genuinely appreciate some idea of how to demonstrate that this
program is entirely IP-safe, or in turn, a list of the patents the compiled
program may be infringing.

(For the purposes of the research, I am assuming I do not need to worry about
researching patent violations in the underlying operating system functionality
that my program calls, as I do not supply that part of the product - however,
it may be that triggering patented functionality in a 3rd party product that, in

turn, my product relies up, may be a concern I should have - I do not have
sufficient legal background to answer that question, just as the folks selling
the Apple app store did not realize they might be prosecuted for patents on
help outside Apple on the app store functionality.)

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    How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
    Authored by: Anonymous on Thursday, July 18 2013 @ 07:45 PM EDT
    This is interesting. If we take a step back and look at the
    purpose of patents which is to give a monopoly on the
    invention for a period of time in exchange for publicizing the
    invention. The assumption being publication allows for future
    use by someone other than the inventor.

    If the result of the patent overload is that no one reuses the
    patent the agreement is one sided and society never actually
    benefits from the granted monopoly.

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