With respect, whether the software can be written in 15 minutes, or 5
minutes, has absolutely no relevance whatsoever to the question of
whether or not a particular patent is valid or not under the Federal law of the
United States of America. Somebody in Apple came up with the idea that it would
be a nice feature to have a bounce-back feature on their smartphones. It would
have ‘utility’, and customers would like it. If there is no prior
art in the form of some other smartphone manufacturer having had this same
bright idea before, and if Apple can prove that they can reduce the idea to
practice, then they are entitled to take out a patent on cellphones with
bounce-back. It simply does not matter whether the idea is difficult to achieve
or trivial to implement. That apparently is how patents work world-wide in
traditional industries. If someone comes up with a new water-entry point for a
steam iron, they can submit a patent application for the improvement to the
iron, and provided that it is apparent that the new water-entry point can be
implemented, they can get a patent on the improvement to the iron, without
having to go into details as to how the iron works. Similarly if someone comes
up with a new type of fan for an oven, they can patent the improvement to the
oven, without having to go into details as to how the oven works. Similarly
with the smartphone. What the patent is intended to ‘protect’ is
the concept of the cellphone with this nifty feature that will attract the
public. Whether this is difficult or easy to implement in code is irrelevant.
That is the way patent law works, and that is the way that patent law was
designed to work.
But they have to write a set of claims that specifies
the devices that will infringe the claim. Then they submit their application,
and the PTO does a prior art search to find evidence of prior art that falls
within their claims. They have opportunity to amend their claims. But once it
seems clear that there is no invalidating prior art then they get their patent.
And anything that falls within the scope of the patent claims
infringes.
But you might claim that the invention is obvious.
Anyone can write it up in an hour. What matters is not whether it is
obvious how to set about implementing bounce-back once someone came up
with the bright idea, but how obvious the concept of bounce-back was for
the ‘skilled artisans’ or PHOSITAs of the cellphone-manufacturing
industry. If Motorola, Nokia, RIM etc. had been manufacturing smartphones for
years without implementing bounce-back, then that would be taken as evidence
that the concept of bounce-back when displaying photos on smartphones was not
obvious, as the requirements of obviousness are defined under section 103
of the patent statute.
What I am saying is that the criteria for a
patent claim to be valid under current U.S. law, and internationally are not
what you think they are. If you don't believe me, look at the Appendix A
containing the final rejection, or as much of the 112 pages as you can stomach
without getting indigestion. Can you point to any passage in that long involved
document that addresses whether or not bounce back is easy to program? Can you
point to anything in that Final Rejection, other than the words of the patent
claims, that makes any reference whatsoever to how bounce back works and what
it does no cellphones? If people on Groklaw think that they understand
patent law, and that what I am writing is nonsense, I challenge them to point
out passages in that Rejection that are concerning in any way with the
programming of bounceback on smartphones. Because what people will find, if
they open their eyes to it, is that the discussion is purely about whether the
formal words of a patent claim read on a totally different method of
displaying HTML pages that is a way of displaying portions of an HTML page
on a PDA or digital device (with no reference to photo-albums or anything
similar). The prior art is more about displaying AOL type portal pages full of
advertisements and breaking news on portable devices.
This means that
questions of infringement and invalidity are a pure casino under the law as it
stands. Except that if a cellphone manufacturer has implemented something that
looks like bounce-back, they need to ‘invent around’ it to avoid
infringement. Because one can presume that Apple's lawyers have done their
utmost to fence their most ‘valuable’ patents with all the patent
claims they can think of. And indeed, Apple could presumably recover their
bounce back patent through submitting a continuation or similar renewed patent
application.
I might as well be hung for a sheep as for a lamb, I
suppose. Obviously software patents are bad, and it is hardly surprising that
they are despised by the Groklaw community. But I really don't think it
helps matters if those who are working to get rid of them stubbonly insist that
they are authorities on what the current law is, and start claiming that a
patent must be invalid if one can program a work-around in less than an hour. I
suggest that only patent lawyers, patent examiners, patent judges, business
people, legal scholars and Supreme Court judges, are likely to understand
current patent law, because that law is complex and counter-intuitive. But
Groklaw brings in the material that can help the Groklaw community understand
the law, and hopefully find ways of influencing the process of improving the
situation. But, respectfully, I don't think it helps if people take up the
position that they know what patent law is about, and can pronounce on whether a
particular patent will stand up in court or not, without careful study of the
law.
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