Programmers are well aware that many of the software patents cover
laughably obvious ideas. Yet the patent system's defenders often
argue that these ideas are nontrivial, obvious only by hindsight. And
it is surprisingly difficult to defeat them in debate. Why is that?
One reason is that any idea can be made look complex when analyzed to
death. But another reason is that these trivial ideas often look
quite complex as described in the patents themselves. The patent
system's defenders can point to the complex description and say, "How
can anything this complex be obvious?"
I will use an example to show you how. Here's claim number one from
US patent number 5,963,916, applied for in October 1996:
1. A method for enabling a remote user to preview a portion of a
pre-recorded music product from a network web site containing
pre-selected portions of different pre-recorded music products, using
a computer, a computer display and a telecommunications link between
the remote user's computer and the network web site, the method
comprising the steps of:
a) using the remote user's computer to establish a
telecommunications link to the network web site wherein the
network web site comprises (i) a central host server coupled to a
communications network for retrieving and transmitting the
pre-selected portion of the pre-recorded music product upon
request by a remote user and (ii) a central storage device for
storing pre-selected portions of a plurality of different
pre-recorded music products;
b) transmitting user identification data from the remote user's
computer to the central host server thereby allowing the central
host server to identify and track the user's progress through the
network web site;
c) choosing at least one pre-selected portion of the pre-recorded
music products from the central host server;
d) receiving the chosen pre-selected portion of the pre-recorded
products; and
e) interactively previewing the received chosen pre-selected
portion of the pre-recorded music product.
That sure looks like a complex system, right? Surely it took a real
clever guy to think of this? No, but it took cleverness to make it
seem so complex. Let's analyze where the complexity comes from:
1. A method for enabling a remote user to preview a portion of a
pre-recorded music product from a network web site containing
pre-selected portions
That states the biggest part of their idea. They have selections from
certain pieces of music on a server, so a user can listen to them.
of different pre-recorded music products,
This emphasizes their server stores selections from more than one
piece of music.
It is a basic principle of computer science is that if a computer can
do a thing once, it can do that thing many times, on different data
each time. Many patents pretend that applying this principal to a
specific case makes an "invention".
using
a computer, a computer display and a telecommunications link between
the remote user's computer and the network web site,
This says they are using a server on a network.
the method
comprising the steps of:
a) using the remote user's computer to establish a
telecommunications link to the network web site
This says that the user connects to the server over the network.
(That's the way one uses a server.)
wherein the
network web site comprises (i) a central host server coupled to a
communications network
This informs us that the server is on the net. (That is typical of
servers.)
for retrieving and transmitting the
pre-selected portion of the pre-recorded music product upon
request by a remote user
This repeats the general idea stated in the first two lines.
and (ii) a central storage device for
storing pre-selected portions of a plurality of different
pre-recorded music products;
They have decided to put a hard disk (or equivalent) in their computer
and store the music samples on that. Ever since around 1980, this has
been the normal way to store anything on a computer for rapid access.
Note how they emphasize once again the fact that they can store
more than one selection on this disk. Of course, every file system
will let you store more than one file.
b) transmitting user identification data from the remote user's
computer to the central host server thereby allowing the central
host server to identify and track the user's progress through the
network web site;
This says that they keep track of who you are and what you access--a
common (though nasty) thing for web servers to do. I believe it was
common already in 1996.
c) choosing at least one pre-selected portion of the pre-recorded
music products from the central host server;
In other words, the user clicks to say which link to follow. That is
typical for web servers; if they had found another way to do it, that
might have an invention.
d) receiving the chosen pre-selected portion of the pre-recorded
products; and
When you follow a link, your browser reads the contents.
This is typical behavior for a web browser.
e) interactively previewing the received chosen pre-selected
portion of the pre-recorded music product.
This says that your browser plays the music for you. (That is what
many browsers do, when you follow a link to an audio file.)
Now you can see how they padded this claim to make it into a complex
idea: they included important aspects of what computers, networks, web
servers, and web browsers do. This complexity, together with two
lines which describe their own idea, add up to the so-called
"invention" for which they received the patent.
This example is typical of software patents. Even the occasional
patent whose idea is nontrivial has the same sort of added
complication.
Now look at a subsequent claim:
3. The method of [149]claim 1 wherein the central memory device
comprises a plurality of compact disc-read only memory (CD-ROMs).
What they are saying here is, "Even if you don't think that claim 1 is
really an invention, using CD-ROMs to store the data makes it an
invention for sure. An average system designer would never have
thought of that."
Now look at the next claim:
4. The method of [150]claim 1 wherein the central memory device
comprises a RAID array drive.
A RAID array is a group of disks set up to work like one big disk,
with the special feature that even if one of the disks in the array
has a failure and stops working, all the data is still available on
the other disks in the group. Such arrays have been commercially
available since long before 1996, and are a standard way of storing
data for high availability. But these brilliant inventors have
patented the use of a RAID array for this particular purpose.
Trivial as it is, this patent would not necessarily be found legally
invalid if there is a lawsuit about it. Not only the US Patent Office
but the courts as well tend to apply a very low standard when judging
whether a patent is "unobvious". This patent might pass muster,
according to them.
What's more, the courts are reluctant to overrule the Patent Office,
so there is a better chance of getting a patent overturned if you can
show a court prior art that the Patent Office did not consider. If
the courts are willing to entertain a higher standard in judging
unobviousness, it helps to save the prior art for them. Thus, the
proposals to "make the system work better" by providing the Patent
Office with a better database of prior art could instead make things
worse.
It is very hard to make a patent system behave reasonably; it is a
complex bureaucracy and tends to follow its structural imperatives
regardless of what it is "supposed" to do. The only practical way to
get rid of the many obvious patents on software features and and
business practices is to get rid of all patents in those fields.
Fortunately, that would be no loss: the unobvious patents in the
software field do no good either.
The patent system is supposed, intended, to promote progress, and
those who benefit from software patents ask us to believe without
question that they do have that effect. But programmers' experience
is otherwise. New theoretical analysis shows that this is no paradox.
(See http://www.researchoninnovation.org/patent.pdf.)
Copyright 2000 Richard Stallman
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