Ask HN: Why Are Software Patents So Awful?

The incompleteness theorem (and a few others) define the boundaries of what a computer can do, but defining the boundary of a space and exploring it's interior are entirely separate endeavours. Some types of computer programs are harder to write than others, and some have more interesting effects than others. It's not unreasonable to use the patent system to reward explorers for finding the interesting parts of that space, just as inventors explore to find interesting parts of the space of all possible mechanisms.

The real problem is that the rules of our patent system are pretty broken for software patents, and the USPTO is terrible at finding and understanding prior art in practice.

It’s not in the individual instructions that there is uniqueness, but instead in the combination of them, that makes the code. By your same argument, every possible thing you could do with the English language has already been done because we’re limited by a finite number of 26 letters or a finite number of about 170,000 words, give or take, and so there’s nothing novel or unique in a new novel -- it’s already in the sandbox.

There are 2 big things going on to get you a patent. 1 – it has to be subject matter than we, as a society, by our laws, deem “patentable subject matter” and 2 – your particular thing, that you say you’ve invented, is both novel and nonobvious (the latter means it wouldn’t have been obvious to combine more than one novelty reference together to come up with your invention).

Think of 1 as the ticket getting you into the show, and 2 as your seat at the show.

The math thing you’re talking about comes from the Supreme Court. For over a hundred years, the Supreme Court has narrowed the meaning of article 1, sec. 8, clause 8 of the constitution (about patents) to exclude mathematics and algorithms as patentable subject matter (item 1), because it’s too important, not because it’s trivial (item 2). They call it “preemption,” meaning giving someone a limited monopoly say over E=MC^2 can preempt an entire field from developing.

That’s very different from it being obvious (item 2), in fact you could say it’s the opposite, which is the argument you’re making in your first paragraph.

But, it turns out that you’re in good company. This particular Supreme Court, the Roberts Court, made the same mistake, namely of mixing patentable subject matter and obviousness in it’s Alice decision, that runs contrary to it’s own case law. It's been harshly criticized in the patent field, though it's unlikely anyone outside our "sandbox" has heard it.

The Alice decision doesn’t really kill business method or software patents, as many have said, but it did weaken them. Much of this is because if you're defending an alleged infringer (and I've represented both plaintiffs and defendants), you will make much hay out of the court's language ("dicta") to win your case.

The other issue we have is with the courts. You see, for several decades, the Supreme Court has punted on patent law, and let its lower appellate court, the Federal Circuit make the calls. The Fed Cir is the appellate court with exclusive jurisdiction over patents, and it’s decisions are way more important than what the USPTO says (in fact the USPTO must follow it).

This particular Supreme Court has woken up and decided to kick the Fed Cir’s butt (reverse it’s decisions). Think of it like parents who’ve placed all of their child raising duties on the oldest sibling. Then one day, after shirking their own duties for years and when the kids are nearly grown, they beat the tar out of the oldest sibling. For years, the Supreme Court has even admitted it doesn't really understand technology or patent law.

And don’t get me wrong. I’m not advocating for software patents, but I do want (1) that our laws be logical and consistent in creation and application, and (2) preferably for a law to be passed by the people versus de facto by the Supreme Court in its application (which is really a construction).

Let me analogize the problem. Imagine that one day you’re reading books and working on computers and floppy disks.

So your information is limited. To be more fair, you’re searching paper copies of patents in “shoes” and using the Dialog database and now-arcane machines to actually look at images of patents (wow).

This is what I was doing in the early 90’s as a patent examiner, following working in industry as a software engineer.

Then along comes all the information in the entire world from the dawn of civilization to the present: the Internet. (Or think of it this way: Bill Cosby meets Twitter.) So now, you’ve got the USPTO, with access to all of human information.

Now, in reality, patents like most other creative work are typically incremental changes. If enough time is spent, it is possible to find reference that are very close to the “invention” being examined, especially if all information is available.

The next challenge is how close do the references have to be? When are the references close enough that when combined together, it would have been obvious to come up with your invention. Is your invention obvious, or not, over references. If it wouldn’t have been obvious to combine them, you get a patent, but not otherwise.

Well, who gets to decide this? It’s not really the patent examiner, though it really is – let me explain.

The patent examiner can’t say it would have been obvious to me, Mr. Patent Examiner, and so you don’t get a patent. That subjective nonsense.

We don’t really want this objective person to be a real person at all. Imagine if we let the president decide – this president – I can’t imagine anything worse.

If you’re familiar with contracts, we create the legal fiction of the “reasonable person” to decide how the contract should be interpreted, and the parties, judges, juries and everyone else must put themselves in the shoes of this fictitious person to decide how to interpret contract language.

In patent law, we’ve had to create the legal fiction of the “person of ordinary skill in the art (POSITA)” If you think about it, it’s logical, because the person has to be someone who works in the field of the patent subject matter, and this person’s doesn’t have a low level of knowledge or a genius level of knowledge, but instead an “ordinary” level of knowledge. And that’s when the patent application is filed, not later.

It’s the POSITA that the examiner pretends to be when issuing the patent, and whose shoes judges, juries and even Supreme Court justices must step in to make the determination.

So if you put 1000 people in a room, and gave them some good (perhaps not even great references) and asked them whether it would have been obvious to come up with an invention, how hard do you think it would be to get consensus? I think it’s a lot more likely that you couldn’t get half of them to agree one way or the other. When I did EE and math all those years ago, I remember a couple of grad students who though everything was rudimentary. I guess there's always some bonus points awarded with this kind of chest pounding.

Now, throw on top on top of that a few more facts. 1 - the examiner has perhaps a few hours or a day or two to find all of the best references, and make a rejection; 2 – the attorney responding for the applicant is limited really by the client’s dollars, so unlike a big corp a small company doesn’t have a budget to keep arguing over and over to get some decent claims allowed; 3 – the budget once we’re in licensing or litigation is much higher, so you can bet that a big company being sued will comb the earth to find the best references to invalidate the patent; 4 – that same big company has enormous marketing dollars to paint anyone who ever brings a suit as underhanded, bad, gaming the system, basically the same as the old lady who sued McDonald’s for giving her coffee that burned her; 5 – for these reasons, and that so many software engineers feel as you do, the USPTO and this particular examiner are extremely nervous to allow a software patents that’s got any teeth. Who does that hurt?

Well, I can assure you it's a much bigger problem for smaller companies and startups than for the big companies pushing out the marketing. That's one of the reasons I'm always fascinated by the vehement antipathy toward patents by startups in SiVy, in a Spock sort of way.

I think you get the scope of the problem. We have huge systemic issues that are exacerbated by big dollar interests. And it's not the best formula when everyone's completely convinced they're right about everything, if you know what I mean.

I hope you notice that I’m purposefully not using legal jargon because I genuinely want an honest communication where we understand each other. Jargon is not a sign of intelligence but rather of hiding.

And I hope we get lots more, because I’d really like to see the nature of the problem. Not to dismiss anyone here, but remember we haven’t looked at any of the patent claims and actual references, and unless I’m missing something, no one’s stated having expertise in the patent field.

When large company A licenses its 2000 patents to large company B for $470 million, and thrown in the mix are other rights, license and non-competes, that doesn’t make the news because the deal is confidential. I’ve done a lot of these, and I’m not bragging here because a lot of others on here have too, but it’s a plain fact that you wouldn’t know about these unless if you were a cxo at one of those companies or their lawyers. But you definitely would see reports about a no-name patent troll suing a startup. The bogeyman is spotted by your local tech reporter/blogger, emboldened by the fact that everyone thinks like her/him and won’t question the various biases and misinformation.

Also consider that today the distinction between hardware and software is really arbitrary. It’s more about the type of instructions being implemented. Anything implemented on software can be embedded into firmware and the like. Can you imagine how arbitrary and nonsensical would be a patent system that says you can’t protect software, but if you burn it into a chip you can protect it? That's the definition of a bad law.

But that’s different than say software for implementing a business process. In my view, and I may be wrong, that’s why you’ll see the CY folks make a distinction between patents for rockets versus for an online store.

Regarding reverse engineering, while I don’t know the particulars from the legal perspective it’s fine and done quite often. In truth, the fact that reverse engineering is completely acceptable is one of the reasons to consider patenting. You may also consider getting an FTO (freedom to operate) to provide at least a reasonable likelihood the end product won’t be infringing.

I provided some thoughts to taf2 below you may consider taking a look at as well.

The defendants used the USPTO’s relatively new (at that time) Inter Partes Review (IPR) procedure in order to try to invalidate the claims (alleged to be infringed) before the USPTO’s Patent Trial and Appeal Board (PTAB). When the IPR was filed, as is customary, they requested a stay (temporary stop) of the court proceedings, in order to try the IPR before the PTAB. The strategy worked, because the claims alleged to be infringed were invalidated by the USPTO’s PTAB, but 2 claims (claims 21, 22) apparently survived the IPR. After the IPR, the case was continued in Texas, again as is customary.

Unfortunately for Uniloc and fortunately for the defendants, Uniloc hadn’t alleged infringement of these claims, so it tried to do so after the IPR. The court found this was too late, and dismissed with prejudice. It does not look like Uniloc got any money from Laminar Research or a number of these other defendants. However, I agree that it was apparently a waste of time for the parties involved, and likely cost Laminar some real legal fees.

The whole thing seems irrational to me because patent troll cases like this should settle early.

I will have to provide some guidelines here for startups dealing with patent trolls. That’s if you and others on HN are okay with it, i.e., to educate versus being promotional.

I rather agree with you in the sense that we've got a winner-take-all system, that has a lot of arbitrariness built into it, with huge ability by big players to game the system, where there's huge misinformation and everyone (whichever side they're on) thinks they're right and won't really listen to the other side. I can tell you that if you talk to a room full of patent lawyers, when they're being honest and not brown nosing their clients, are pro-software patents just as much as people on here will be anti. These are reasons why I'm looking to disrupt, it's like Ma Bell before everyone woke up and AT&T was broken up.