Broken Patents and Obvious Art

The Constitution grants exclusive intellectual property rights “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1]

There are a number of prerequisites which must be met before a patent can be granted. I’ve covered software patents already, yet the patent system covers much more than software. Copyright protects the literal expression of things, yet excludes ideas, methods, and systems as the purview of patent law.[2]

Patents are disallowed for subject matter in the categories of “laws of nature, natural phenomena, and abstract ideas.” In order to obtain a patent, an invention must be: (1) patent-eligible subject matter; (2) useful; (3) novel; and (4) nonobvious.

Nonobviousness seems to have become one of those things that, despite it’s “obviousness” to the layperson, has gone the way of the copyright “creativity” requirement. More specifically: trivial advances or those that are logical steps to those “skilled in the art” are not supposed to be patentable. Yet somehow, they are.

Filed in 1997, granted in 1999:

United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.”

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed be-tween the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is pre-vented from radiating outwardly into and through the bread portions from the surrounding peanut butter. (Boyle, The Public Domain)

Filed in 1997, granted in 1999:

United States Patent number 5,960,411 for Amazon’s patent on one-click check out:

The 1-Click patent, which lists Amazon founder and CEO Jeff Bezos as one of its inventors, was filed in 1997 and refers to a “Method and system for placing a purchase order via a communications network.” Amazon in the past has used 1-Click to sue rival bookseller Barnes & Noble and licensed the technology to Apple. (from http://www.techflash.com)

Apple’s patent on making phone numbers in texts and e-mails dialable on click:

In one prong of the many-pronged attack that Apple has been making on Android, it’s scored a victory at the International Trade Commission, where it’s been determined that the idea of making a phone number in an email or on a web-page clickable to dial it is so special and wonderful that only Apple could possibly come have up with it. (from http://www.techdirt.com)

Legal system of intellectual property law, oppressive legal system

While I have my reservations about the over-reach of copyright law, at least independant creation is an affirmative defense in an infringement suit. Not so in patent law, where even if you innovate solutions to common problems on your own, you are still vulnerable to infringement suits. Hence, the over-reach of patent grants tend to be more insidious: even if you independently solve a novel problem to the benefit of society, you could still be liable for enormous fines should your solution be similar enough to a previously patented solution.

To avoid or counter possible legal liability, companies attempt to hoard patent to buffer themselves against possible liability (Google and their purchase of Motorola). Alternatively, smaller entities could be forced out of the business by patent trolls (Recent victory/quick description of patent trolls righthaven)

Anyways. It gets even more ridiculous. Check out Bloomberg Businessweek for some of the silliest patents ever filed (not that there’s a shortage of ridiculous patents). [4] Which makes me increasingly dubious that patent law is fulfilling its objective of incentivizing the progress of science and the useful arts. Soon the Onion’s 1998 satire “Microsoft Patents Ones and Zeros,”[5] will no longer seem so far-fetched, especially in light of Amazon’s recent patenting of social networking. (see Albert’s comment below)

Footnotes    (↵ returns to text)
  1. U.S. Constitution Article I, Section 8, Clause 8
  2. 305.02 Ideas, methods, or systems.
    Ideas, methods, systems, or the like are not copyrightable, regardless of the form in which they may be described, explained, or embodied in a work. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. See 17 U.S.C. 102(b)
  3. as an unfortunate corollary of this, patent law is one of the only reliable positions for law school graduates that posesses a decent salary for reasonable hours. Perhaps due to the two-year back-up of patent applications.
  4. Thank you, Jon Burmeister

3 comments for “Broken Patents and Obvious Art

  1. Albert
    January 16, 2012 at 8:21 pm

    Don’t forget about Amazon’s 2008 patent on social networking, yep, all of social networking( http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,739,139.PN.&OS=PN/7,739,139&RS=PN/7,739,139 ). Part of the problem arguably has been that historically USPTO agents have every incentive to just approve this thing and get it off their desk. Also, it seems like they’ve generally been bad at finding prior art in the software sector.

  2. Jon Burmeister
    January 23, 2012 at 6:46 pm

    Great post, really learned a lot. I’m a complete newbie to all this, but the criterion of “non-obviousness” is super interesting. A tricky one, to be sure, given how many things seem obvious once someone else has first thought of them. Going the other direction, my mind drifts towards Aquinas’ idea that certain things are not self-evident to everyone but merely “self-evident to the wise”(!). I will readily admit, however, that the ‘sealed crustless sandwich’ is not one of those things.

    • Rocky Acosta
      January 24, 2012 at 9:50 pm

      Patents are evaluated against the knowledge of one “skilled in the art.” So, developments in CS should be patentable if they are non-obvious to other computer scientists, so “self-evident to the wise” is what matters, not whether they are self-evident to everyone. What I find disconcerting is that patents are being granted on things that ARE self-evident to everyone. Except, apparently, the patent office. I heard in a speech at Yale (haven’t located the offending patent, so hopefully it was a hypo) that a disgusted patent lawyer filed, and was granted, a patent on devices that swung “forth and back” rather than “back and forth.”

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