More Mis-Information As Usual From the Anti Software Patent Crowd (Response to NY Times OP Ed)
Just finished reading Prof. Robin Feldman’s guest “hit” piece in the NY Times and it makes me embarrassed to admit that I actually applied to UC Hastings at one time to go to lawschool there. Boy am I glad I skipped that association.
Of course Professor Feldman first regales us with her credentials in software technology before going on her anti-software tirade to establish why we should be listening to anything she writes. Or, maybe…. not, as she appears to have zero experience in anything remotely related to software or even computers as evidenced by her CV here.
In fact, her main claim to fame and occupation seems to be writing …negative anti-patent articles. Why is this? Well, there’s a big market in this for reasons I explained the other day: calling patent owners and inventors names like “patent trolls” is the new PR smear campaign to shield the bad acts of large corporate serial infringers.
But let’s take a look at her article arguments so we don’t just dismiss her analysis simply because she is spectacularly unqualified to ponder the merits of anything technical in this domain, or even prosecution of patents in general. No, to truly appreciate the level of fact-free analysis you have to review her conclusory comments like these:
“….the software patent system has operated by its own rules. Compared with patents for other innovations, those for software are granted using a very broad and lax standard of invention.”
I don’t know what country Prof. Feldman practices patent law in where it SO easy to get software patents granted. Wait a minute, I just remembered, SHE ALSO HAS NO PATENT REGISTRATION so of course she can’t ACTUALLY practice. Those who KNOW – as in the people who actually prosecute patents with the PTO (as opposed to ivory tower folk like Prof. Feldman who “write” about it and sit on panels with other similarly clueless pundits) – understand that the PTO standards are in fact more rigorous for software patents than almost any other kind of technology.
As real data shows, there are entire art groups in the PTO known – from those with direct experience and real statistics – to reject more than 90% of patents in guess what: SOFTWARE. Patentcore’s excellent Examiner data (from Christopher Holt) proves this out clearly to anyone who wants to know the truth, as opposed to the anti-patent, fact-free propaganda we get from “scholars” like Prof. Feldman. In fact during the “reign of Dudas” the PTO valiantly tried to kill every software and business method patent application in utero with something it called “second eyes review” – a fancy moniker “invented” by similarly minded anti-patent folks who just couldn’t stand the thought of someone “innovating” in a way that might interfere with big business in the Internet space. This uniquely unfair practice – to a select group of inventors who happened to be in this field of art – was roundly criticized for years, and successor Director Kappos wisely got rid of it.
As perfect examples of the over-the-top rigorous examination given to software or business method patents, I offer Exhibit A in the ongoing fiasco I’ve experienced in the PTO, where it took them more than 9 years of examination to admit they rejected my case improperly. Or how about this one, where it took me almost 5 years to get the PTO to acknowledge that the term “and/or” used in my computer related patent application was well understood in the computer arts, even if certain Examiners and learned Professors don’t quite… get it.
Thus the unsupported, alarmist propaganda that there is somehow “lax” examination is completely unsupported of course. The PTO is more hard-nosed about these cases than any others on their docket. Prof. Feldman presents ZERO in the way of hard evidence to support her wild suppositions. Prof. Feldman commits gaffe after gaffe because – IMO – she has no practical real world experience actually trying to get “patents granted” as she writes about.
Later in her article of course she goes on to regurgitate the typical evil “troll” pablum taken from the authorized anti-patent playbook, which as I discussed the other day is just more… nonsense. No one “prevents” her clients from doing anything – they are free to stop using the technology if they don’t want to pay.
Halfway through her piece she ventures further into bizaarro land, stating (according to her learned experience no doubt) that in her opinion the Courts have a “… simple misunderstanding about the nature of computer code.”
Ah yes, the pundit who has apparently never taken a computer programming class, or held a programming position in her life, is lecturing the Courts about their lack of understanding of computer code. By her rationale the problem is that the Courts are terribly misguided because they have:
“…blessed an approach to software patenting that merely described, in simple English prose, what the invention did. Thus did we end up with our dysfunctional arrangement.”
The only “dysfunctional” thing in the article is Prof. Feldman’s logic. Software patents often are expressed as a method of operation (i.e., what the invention DOES) of a machine which, if she happened to read 35 USC 101 recently, is precisely what the statute is supposed to cover. The statute makes no mention of not protecting methods simply on the basis that it is too successful: i.e., there is a large universe of machines that can implement the invention.
And, in case it was also not apparent to Prof. Feldman, patent claims have been written in “simple English prose” since the dawn of our patent system. Her admission that the prose is indeed “simple” to understand further belies her related complaints in other anti-patent musings that somehow all these software inventions are anathema because they are …. too hard to figure out.
Finally Prof. Feldman predicably proposes “fixing” the current problem by:
“…asking whether the patent is appropriately aimed at a specific commercial application rather than a broad concept.”
Here Prof. Feldman reveals her true colors, as she unabashedly promotes the large company, serial infringer talking point: all those patents are just too INCONVENIENT because they cover what these companies are doing. How much “simpler” it would be if instead the inventor was artificially “limited” to a SPECIFIC application!
So let’s take a visit to Prof. Feldman’s wonderful world of semi-useless software patents to see how her plan plays out. Imagine her inventor colleague Professor X comes up with a new algorithm for detecting if someone is cognitively and motor skill impaired, using a combination of images, quiz questions, speech recognition, mouse movements, and response time. His main application is for assessing drunk drivers before they get in their cars. He then “codes” the program in the C++ language on his PC. He files for a patent on this idea in say, 1990, when smartphones are non-existent, and car “computers” consist mostly of fancy LED lights telling you if your gas is low.” After wrestling with the PTO for several years the good Professor X gets his patent in say, 1998, which, for purposes of this discussion we will assume qualified under the old rule, so he gets protection until 2015. But that’s the extent of his commercialization b/c the good Professor, like a lot of folks, isn’t independently wealthy, doesn’t work for Google, and isn’t one of those young scrubbed faced kids who can get easy access to big VC cash.
In fact he pitched the idea to install some PCs in a few bars but the cost was too prohibitive given the economic realities of the time. In 2009 smartphones are ubiquitous and car computers now are like something from Star Trek. Now imagine a bunch of Prof. Feldman’s clients in the big corporate technology world want to “innovate” by making a phone app, or an in-car application, that imitates exactly what Prof. X invented 19 years before. That is, they want to have a computing machine that is programmed to detect human impairments, such as whether the person is drunk or (if we are in Colorado) “stoned.”
Under the current law these folks would have to pay Prof. X for using his invention if their machines indeed “DID” what his claim states. It would not matter which “language” their tool was written in, because the operational logic would be exactly the same, just as their equivalent meanings for different words in different spoken languages. The fact that one of Prof. Feldman’s “innovators” today would have to “code” his/her iPhone app using a different high level language to clone Prof. X’s idea is completely irrelevant.
Similarly, the fact that some other “innovator” uses Prof. X’s invention for a slightly different application, like detecting marijuana use for example, does not get them off the hook either if they nonetheless configure their computing machine to “do” exactly what Prof. X taught you to do in order to detect human impairments. The fact that is invention is useful in other domains should be a credit, not a detriment.
But in Prof. Feldman’s anti-patent Utopia, her corporate clients would get off scott-free, because they’d claim as a defense that their “code” was written differently, or that their “application” was different. Better yet, they’d attack the good professors’ patent as somehow “invalid” because it was not directed to a “specific” application but could be used successfully in other domains.
Of course this perverse logic would not work in any other technology art. Suppose for example there was an invention on a hand held tool (the inventor mentions a hammer as the preferred tool, but not the only tool) that has a new plastic (the inventor says other materials will work) finger grip that makes it easier to hold. By Prof. Feldman’s logic, corporate patent squatters making a baseball bat (tool) using the identically configured finger grip, except in metal, should get a free pass.
Everyone would be up in an outrage if the level of protection for patents were this weak in other arts. The same manufacturers Prof. Feldman now protects would be up to their eyeballs in cheap foreign import knock-offs in a week, and they’d be back in Congress clamoring how inadequate patents are for protecting their “innovations.”
Imagine similarly if someone wrote a music piece for a horn, and copyrighted the work. Later someone took it and adapted it for piano. Again, under the “IP theft is ok” model, the artist would not get paid because the writing of the piece in a way that was adaptable for more than one instrument would be considered “too” broad of a concept. This, of course, is nonsense.
Prof. Feldman and her anti-software patent lobbyists are directing their attention in this field because they keep losing in Court when real people see how big companies are stealing small inventor patents that turn out to have great value in certain fields. To “fix” this problem their solution of course is to try and make certain the PTO never grants these patents in the first place, or, when they do, they have so little value that they can never be a threat to one of her corporate sponsors. PROBLEM SOLVED.
The NY Times piece is typical of the hyperbolic, fact-free anti-patent, anti-inventor content seen regularly from the serial infringers. We need to start holding these folks accountable for their gross distortions of the truth, and stop giving them a free pass just because they have the title “Professor” on their CV. This designation is no longer any guarantee that the proffered “scholarship” is free from corporate persuasion.
In closing, I expect as the SCOTUS deliberates and the patent (d)(r)eform bill is deliberated, we will see a well funded and orchestrated, daily attack on inventor rights from more of these sponsored talking heads. I encourage anyone with influence or access to a responsible ear to counter these incredible falsehoods being promulgated about software patents and resist further erosion of inventor rights.