From the Desk of the Liquid Engineer

As some of you may know, I am very much interested in patent law and internet/computer law, especially in areas where they intersect. This interest is in fact what led me to decide, approximately two years ago, to apply to law school in the first place. I picked SMU because of it’s strength and reputation in this field.

I am aware, however, that intellectual property (IP) is a vast, nebulous field that covers a lot of different things, and when I tell people I want to do “patent law” or “intellectual property law” I could be talking about approximately 64,001* different things, from entertainment law (book copyrights, movie rights, etc.) to software patents.

I thought it would be interesting, then, to every once and a while do a brief post on some of the cases/issues I’m following and why I think they’re important, and what, as a Computer Science major, Political Science minor, and general geek with (for the time being) no legal training, I think about them.

If you’re interested, I’ve pulled a few things off Slashdot that caught my attention. They’re under the cut.

*This number brought to you by the US Department for Impressive Fake Facts and Figures (US DIFF), Hyperbole Division.

The end of last month, the Supreme Court did something I actually liked: they made it “easier to invalidate patents that are ‘obvious’ combinations of earlier inventions.”

Generally speaking, there are two primary ways to invalidate a patent. Finding and demonstrating Prior Art–previously existing work that shows the patent is not unique– is one, but it has significant drawbacks. Someone has to take the time, effort (and money) to do the research to find and document prior art, submit it to the US Patent and Trademark Office (US PTO), and hope they can convince someone there to invalidate the patent, while all the while the patent holder’s lawyers will be doing their very best to argue the patent is in fact valid. The burden here is on the person or entity trying to invalidate the patent, and when those who hold the patent have more legal/fiscal resources, it’s highly likely they’ll be able to make sure their frivolous patent survives so that they can extort money from other innovators.

The other method, demonstrating that a patent is an obvious combination of existing inventions, is a far better option for weak entities (small corporations, non-profits, and individuals) trying to get a patent held by a strong entity (e.g.: Microsoft, Amazon, Apple, etc.) ruled invalid, and this is what SCOTUS just theoretically strengthened. This process puts the burden of proof on the patent holder to show that their idea is indeed unique and worthy of being classified as an invention. Someone wishing to get a patent invalidated merely need demonstrate that the patent is obvious. Whether or not prior art exists in exactly the form the patent describes (and it may not) is irrelevant.

As an example of an obvious patent, consider Amazon.com’s “One Click” patent. (Link to actual patent (PDF).) This is a glaring example of a frivolous patent relating to computers and the internet. To quote Wikipedia, one-click shopping “allows an online shopper using an internet marketplace to purchase an item without having to use shopping cart software. Instead of manually inputting billing and shipping information for a purchase, a user can use one-click buying to use a predefined address and credit card number to purchase one or more items.” Useful? Definitely. A unique invention? Not a chance. It’s a patent on using a button/hotlink to trigger a number of processes (e.g.: adding an item to a shopping cart, skipping checkout by pulling the customer’s identifying, shipping, and billing information from a database, and taking the customer straight to the Order Confirmed/Processing page). If one were to count each of these items as discreet inventions (queryable databases, images, hotlinks, etc.) the patent fits the “obviousness” test for invalidation perfectly. In my opinion, there are two main reasons Amazon’s been able to maintain the patent since 1999 and force Apple and other such companies to buy licenses from them. Their legal behemoth is quite intimidating, which keeps the aforementioned weak entities from taking them on en masse. Perhaps more importantly, the companies that have the legal might to take them on are more than likely unwilling to do so because they themselves hold similarly frivolous patents that would be weakened should the One-Click patent fall. Microsoft is an especially egriegous violator here, as I intend to discuss in another post, though Apple, Google, Sun, and other tech companies traditionally considered to be on the side of the angels have their own skeletons in the closet.

Things are starting to change, however. Again quoting the linked Wikipedia article, “On May 12, 2006, the USPTO ordered a reexamination[7] of the One-Click patent, based on a request filed by Peter Calveley.” It should surprise no one that the even the US PTO, which has awarded some pretty dubious tech related patents, couldn’t ignore the mind-blogglingly obtuse nature of this one. Even before Amazon touted the uniqueness of its one-click patent to Congress last Spring, an examiner had already slammed it as obvious and “old and well known.”

Amazon, however, isn’t going down without a fight. They’ve filed an appeal requesting an oral argument, considerably unusual for this sort of case. At the same time, in what some view as a stalling tactic, Amazon has cancelled and refiled the patent, removing the first 48 of their claims and replacing them with a single much more specialized, weaker claim. (This claim is still obvious, IMHO.) Even if the original patent is eventually struck down, Amazon seems to be hoping this one-claim version will hold up and allow them to continue to make money by forcing other companies to license it’s “innovative technology.”

There’s a certain political/conspiracy theorist bent to all this, as two members of the Senate Judiciary that heard Amazon’s testimony to Congress received significant campaign contributions from a PAC founded by Amazon CEO Jeff Bezos and heavily contributed to Amazon.com employees and Amazon Holdings. Nothing underhanded about that at all. Nope. (In all seriousness, there should probably be a rule stipulating Congresspeople whose campaigns were financed by the parties participating in a hearing must recuse themselves from said hearing. There are similar conflict of interest rules for judicial proceedings. But that’s another post/rant entirely.)

[tags]intellectual property, patents, software patents, patent law, law, supreme court, Amazon.com, Amazon, one click, oneclick, one-click, campaign finance, congress[/tags]

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