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Study Says 30% of Patents Are Duplicative and Thus Invalid
Friday, January 14 2005 @ 07:08 AM EST

The Economist has an article on IBM's recent patent pledge, whereby it is granting open source developers the right to freely use without royalties 500 of IBM's patents for open source development. The article calls it "a bold step that could have far-reaching implications for the computer industry." Then it begins to explain how the current patent system is strangling innovation:

Indeed, there are good reasons for believing that today's system of granting patents is stifling innovation, not encouraging it. Patent offices around the world have never been busier. This is partly because of increasing amounts of work in the fields of the internet, genomes and nanotechnology. But it is also because patent offices are being too lax in granting licences, encouraging firms to rush to register as many (often dubious) ideas as possible in an effort to erect legal barriers against their competitors.

In 1998, America allowed firms for the first time to take out patents protecting so-called "business methods". These often seem to cover ideas which are neither useful nor wholly novel -- simple tests (together with not being obvious) which are supposed to determine whether a patent should be granted or not. Patents, which usually give the holder a monopoly over the process or innovation protected for 20 years, are also becoming more difficult and costly to challenge. In addition, the USPTO is often reluctant to turn down an application because, perversely, doing so involves more time and effort than approving it."

And, they say, with China and India becoming more active in western markets, it is going to get worse. Then they cite a recent study by M*CAM, a consultancy which studies intellectual property, which "found that more than 30% of patents make duplicate claims, raising questions about their validity."

They don't say which M*CAM study they are referring to, but here is the announcement about one and here's an earlier study of the US patent system, done with the aid of M*CAM DOORS, a patent analytic tool. If you read it, you'll find out that this isn't the first time the patent laws in the US have needed to be tweaked because of abuses. M*CAM was commissioned by Congress to investigate the patent system. They are not some wild-eyed group of radicals. Note its conclusion regarding the modern day US Patent Office:

In conclusion, the existence and development of a patent system in the United States provided the necessary stimulus to foster an environment of rapid technological advancement. The legal treatment of patents as a piece of property, no different from real estate, provided the groundwork required to create large powerful corporations. These corporations profited significantly from their state-granted limited monopolies. The system created by the Patent Act of 1836 has remained largely intact, with a few minor adjustments. However, as our Founders feared, this system has led to continued abuses and problems with the United States Patent Office.

Patents currently take several years from date of application filing to date of issuance. Many times, a patent is issued long after the technology that was embodied in the patent has become obsolete. Patents are still being granted for obvious, non-useful inventions. Additionally, there currently exists a flood of patent infringement litigation - American corporations have realized the financial benefit associated with winning a patent infringement suit. Millions of dollars are routinely awarded for damages and patent licensing fees. For some, patents have become nothing more than a mechanism for bargaining in court.

It is this problem -- the cynical misuse of the patent system as a mechanism for bargaining in court -- that IBM is seeking to address. IBM's move may encourage other firms to follow them in building up a patent commons for open source. "If they do, then more firms may be encouraged to collaborate in developing new software instead of trying to forestall their rivals by taking out pre-emptive patents," the Economist states.

Erecting legal barriers against competitors is not what the patent system is supposed to be for. It is supposed to be about encouraging innovation. If it is failing to do that, and according to this article and the study it is failing, then it's obvious that we all will benefit by making some changes. Bold isn't a big enough word for what IBM has done, while it waits for the patent debate to reach a conclusion. Take a look at this article to get some idea of the impact the EU patent debate is having there and in the US. The statement from MIT is hard to match up with the M*CAM study that 30% of all patents are probably bogus:

"It would very much hurt the high-tech community'' and innovation if laws were dramatically altered, said Ann Hammersla, senior counsel for intellectual property at the Massachusetts Institute of Technology.

I think I may safely translate that as meaning that MIT would be very much hurt, or thinks it would be. But if so many patents are being approved that there is a 30% duplication rate, something is rotten in the system and it needs to be fixed.

Meanwhile, IBM just steps right over the problem. It isn't asking the world to give up all their patents. We can see how effective such a tack would likely be with Ms. Hammersla of MIT. Instead, they say: if patents threaten to destroy open source innovation, let's do something about it. Do we really want a world where a Linux can't happen ever again? Only if you are Microsoft would you be a beneficiary of such a system. If you are not Microsoft, and most of us are not, then it simply makes good sense to create a field where innovation can flourish.

The article makes one more statement I'd like to correct:

Other recent squabbles have centered around claims of patent and copyright violations for the Linux open-source system.

I'd like to point out that SCO has no patents at play in the current litigation. None. No one in the world has yet brought a patent infringement action against Linux. Microsoft has blown a lot of smoke in the air about it, and I fully expect they would like you to believe it has already happened, but it has not. Rather, IBM has accused SCO of violating IBM's patents.

If you wish to verify the information about the allegations in the lawsuit, all the legal filings are on Groklaw's Legal Docs page: http://www.groklaw.net/staticpages/index.php?page=legal-docs#scovibm.

SCO's 2nd Amended Complaint: http://www.groklaw.net/article.php?story=20040207022922296
IBM's 2nd Amended Counterclaims: http://www.groklaw.net/article.php?story=20040331043539340

This is the third or fourth article in the last week that I've seen saying something like this, so I'm thinking maybe we should do a chart for the media.

M*CAM has a number of articles listed on its news page, and here's a quotation from one article listed there, entitled "Patents Seen Loose Of Constitutional Moorings" from New Technology Week, April 19, 2004:

Since the time of Abraham Lincoln the patent office has not been funded in a manner that would allow it to fulfill its constitutional charter. The Constitutions says that in exchange for a disclosure that advances science and the useful arts you may get a limited monopoly. Fair enough. Now, here comes the problem: Since 1980, since the infamous Bayh-Dole Act, which was going to unleash the brain trust of America - one word has been added to "patent" that is unconstitutional yet it characterizes over 90% of the patents in circulation, not only in the United States but also in Japan and Europe. That word is "defensive". A "defensive patent".

I would submit to you that anybody who actually uses those two words in conjunction is advocating something that is in stark violation of the Constitutional (intent). Why? Because the grant of a monopoly was not for your protectionist self-interest. The grant of a monopoly was in exchange for your disclosure of something that promoted science and technology and industry. In 1980 to 1983, the decision was made that quantity was more important than quality and the Patent Office became a customer service organization. Who's the customer? As I read the patent statute and the Constitution, I don't see the customer as the applicant. I see the customer as the public - for whom, in that exchange of sovereign grant of monopoly rights, there has been an advancement of the public interest.


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