[Patents] Why Software Patents are so Trivial

[PILCH Hartmut phm@a2e.de]

http://swpat.ffii.org/stidi/frili/indexen.html
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                    Why are Software Patents so Trivial?
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      A look at the reality of software patents shows that most of the
      "inventions" are lame and trivial. Even the more ingenuous ones
    usually represent ideas that took one tea-hour or bathtub session to
    conceive. In other fields such as pharmacy, a patented invention is
    often the result of years of capital-intensive research. Why is this
                     so and what can be done about it?
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A problem of law, not of patent examination

   By browsing through our [38]European Software Patent Database, you can
   easily compile a "horror gallery" of impressively non-inventive
   patents. It will be much more difficult to find even a single patent
   on a method that a programmer would consider worthy of admiration.
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   Some people say that this is because the patent offices do not do
   their job well. If the criteria of "novelty" and "inventive step" aka
   "non-obviousness" were applied 100% correctly, software patents
   wouldn't do much harm, these people say. Some poeple have for more
   than 10 years been prophesying that is only a matter of time until
   this problem will be solved. However the solution is further away than
   ever.
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   The following dialogue between Ramon Garcia Fernandez, a spanish
   information scientist, and Steve Probert, deputy director of the
   British Patent Office, conducted 2000-112-20 on the [39]Patents
   Mailing list at aful.org, goes right to the heart of the problem:
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   Ferndandez:
          My disagreement with software patents is the philosophy of most
          patent offices. For me, a patent should be granted only when
          there the research needed for the invention is expensive, so
          that said research would not be posible without the incentive
          of the monopoly. By contrast, the opinion of patent offices
          seems to be that the inventor should somehow have natural right
          to monopoly. They seem to think that the invention is
          intrinsically a very difficult process and that all incentive
          to it is small (I would like to hear Steve's opinion). By
          contrast, the invention of a method to solve a problem is part
          of the daily work of a programmer.
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   Probert:
          I don't really want to express an opinion because I think that
          would be wrong for me as a Civil Servant and an official of the
          Patent Office. What I would say is that the patent system has
          never differentiated between inventions on the basis of how
          much the underlying research cost. It doesn't even distinguish
          between those inventions that are truly valuable and
          ground-breaking, and those that are [comparatively] trivial and
          insignificant. As the law stands, we would not be able to do so
          even if we wanted to. Only if an invention is known or obvious
          can we raise a legal objection.
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          To some extent the system should be proportionate and
          self-regulating - in industries where the research costs are
          very high (eg pharmaceuticals), the patents will be more
          valuable. (So licencing costs will be higher etc.) OTOH, where
          the development costs are lower it will often (but not always,
          I accept) be cheaper to work around a patent. In such cases the
          patent will be worth less. In other words what I am saying is
          that the value of a twenty year monopoly varies depending on a
          number of factors, one of which is the typical cost of research
          in the field. Setting arbitrary thresholds based on research
          costs would effectively discriminate against individuals and
          smaller companies in favour of the bigger companies who will
          always spend more on research. And who would decide how much
          money needed to be spent to make a particular invention? (I
          presume you would not be content to determine the fate of a
          patent application on the basis of how much was actually
          spent.)
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   Fernandez:
          Probably the most important problem here is communication
          between non-programmers (lawyers, patent officials and so on)
          and programmers. It is probably very difficult to convince the
          former about what kind of things are easy for programmers, such
          as having ideas, and what kind of things are difficult and time
          consuming.
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   Probert:
          I cannot speak for lawyers, but I can assure you that many
          Patent Examiners are programmers themselves. In my group, all
          the Patent Examiners who deal with software applications either
          write computer programs in their spare time or have been
          employed as programmers before they became patent examiners.
          They usually have a pretty good idea whether something would
          have been easy or time consuming for a programmer. However,
          they might express the communication problem the other way
          around - it's very difficult to persuade programmers that just
          because an invention is "easy", does not make it any less
          patentable.
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Why not raise the "inventive step" standard?

   This dialogue confirms what everybody in the patent trade knows: the
   criterion of "inventive step" as it stands is not designed to sort out
   trivial patents.
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   It is very hard to prove that even the most trivial idea does not
   contain an inventive step. The only way to show this currently at the
   European Patent Office is to prove that the idea can be obtained by
   simply combining the teaching of two known documents that the "person
   skilled in the art" would normally consult.
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   In the case of software patents, the person skilled in the arts rarely
   even consults documents. New programming problems occur all the time,
   and "inventing" a solution to them is the normal way to go. Most such
   solutions are not even worth being published in any inforomation
   science journal that an examiner might consult for testing their
   novelty. The real development effort usually does not lie in these
   ideas but rather in the "gory details" of implementing that is covered
   by copyright.
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   Certainly there are here and there some really difficult mathematical
   or informatical tasks. Certain mathematical proofs took hundreds of
   years to find. So, shouldn't we try to raise the inventivity standard,
   so that those really worthy achievements can be rewarded?
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   Even if lawmakers wanted to radically reform the existing patent
   system and raise the "inventive step" standard, they would encounter
   great difficulties. How would they define "height of invention"
   (Erfindundh=F6he), as it is still sometimes called in old-fashioned
   German patent jargon? "At least 20 inches above the state of the art"?
   "At least 20 twists of the brain beyond the state of the art"?
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   Only a social game could help here: let the patent applicant first
   publish only his problem and provide incentives for the public to
   submit solutions until a certain deadline. All these solutions are
   then considered to be prior art. This could really work, but it is a
   very radical proposal that is even further from being accepted by
   patent lawyers than the abolition of software patents. Do not forget
   that the patent system is regulated in detail by [40]international
   treaties and therefore almost unreformable.
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How can the problem be solved then?

   Traditionally there has been one other criterion that has helped=20
   to sort out trivial ideas: the criterion of technical character /
   technicity / physical content / empiricity, as it is reformulated in
   our proposed [41]Regulation about the invention concept of the
   European patent system and its interpretation with regard to computer
   programs. This criterion is sufficiently clear and excludes those
   "post-industrial" innovations that are based only on abstract calculus
   and do not require experimentation. Finding a new causal relation
   between natural forces and a physical effect is usually much more
   difficult than finding a new mathematical equation.
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Further Reading

     * [42]Report on Software Patents by Joaquin Seoane (proffesor of the
       Universidad Polit=E9cnica de Madrid) and Ramon Garcia Fernandez
       (Contains a long chapter on the triviality problem. Quotes patent
       lawyers who are encouraging their customers to patent anything
       that seems useful and forget about the idea that patents are about
       inventions. They are not. Especially in software, you have to
       forget that old prejudice quickly, if you want to play the patent
       game.)
     * [43]Bronwyn H. Hall & Marie Ham: The Patent Paradox Revisited
       (Research work done at Univ. of California, Berkely, published
       1999 by National Bureau of Economic Research Inc. Finds that the
       surge in patents in the semiconductor industry in the 1980-90s
       does not reflect a surge in R&D activity. Most of the patents are
       trivial software innovations and were just stockpiled as weapons
       in a kind of arms race.)
     * [44]Ius Sui Generis (Some radical ideas on alternatives to the
       patent system, including social games of problem solving
       competition)
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References

  38. http://swpat.ffii.org/vreji/pikta/indexen.html
  39. http://www.aful.org/mailman/listinfo/patents
  40. http://swpat.ffii.org/stidi/trips/indexen.html
  41. http://swpat.ffii.org/stidi/eurili/indexen.html
  42. http://www.dit.upm.es/~joaquin/report_en.pdf
  43. http://papers.nber.org/papers/W7062
  44. http://swpat.ffii.org/stidi/basti/indexen.html