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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.

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