Woo hoo! Patent reform is finally here! With the help of companies such as IBM, Novell and Red Hat, the U.S. Patent and Trademark Office is putting in place a plan to make sure that bad software patents dont happen and open-source software is protected from the threats of patents.
Its just what weve always wanted! Or not.
In fact, I think Ill keep my celebratory bottles of champagne on ice for now. The proposed reforms from the USPTO are a step in the right direction, but they are a far cry from real reform.
I know some of you may be thinking Im the typical activist type—someone who sees anything short of complete eradication of software patents as a complete failure of reform and who wont accept reform that meets in the middle. But thats not true. If the patent system met reformers halfway, I would dance a jig and kiss a nurse in Times Square. But the measures proposed by the USPTO arent even close to meeting in the middle. Its more like the patent system is moving from running full speed away from reform to walking slowly away—and occasionally looking over its shoulder.
At the time Im writing this column, many details are still to come. But, as far as I can tell, most of this proposal is about putting better processes in place to help identify bad patents. I think thats a great idea, especially since these tools will make it easier for the public to track patent applications. If these processes work, there also will be good tools at the disposal of patent examiners for discerning bad patent submissions from valid ones.
So far, though, thats all this is about—better tools. I cant see anything in the proposal that would force examiners to use these tools. And there are significant forces at play that lead me to believe that many wont use the tools.
Many patent experts have said, for example, that most examiners dont use the tools already at their disposal, that the examiners have a very heavy workload and that they are pushed to approve most submissions.
Which leads to another point: To use the words of the OJays song railing against greed and lust for power (which makes it totally inappropriate as the theme song for "The Apprentice"): "Money, money, money, money ... MONEY." Since the patent system opened up to software and business method patents in the 1990s, the USPTO has gone from an institution that ate money to one that makes money.
If the recent proposals end up working perfectly in terms of reform, they would greatly decrease the amount of patents being approved, which would decrease the money coming into the patent office. Id like to think that wouldnt matter, but anyone who drives on a toll road that was supposed to be toll-free once construction was paid for knows that government bodies will do anything to keep the money flowing in.
The final problem is that this proposal does nothing to address the biggest problem in patents right now—namely, business method patents. While Id be happy to be met halfway when it comes to software patent reforms, I do think that total annihilation is the only option when it comes to idiocy such as one-click patents and patents for deciding what customers like by looking at what theyve already bought from you.
Theres no reform I can think of thatll fix the problem of people trying to patent common-sense ideas that have simply had the Internet or computers added to them.
How bad are business method patents? Heres an example of a patent idea that I honestly think I could get approved with the right experts to help me draft it: It would be a Web services-based system for customer interaction over the Internet. The process would use software-based avatars that would interact with customers seeking assistance and support. These avatars would use state-of-the-art automated technology to provide customer service, with the key innovation being that the avatars would always appear cheerful, helpful and happy.
There. Ive just proposed a business method patent for service with a smile.
Labs Director Jim Rapoza can be reached at email@example.com.