Richard Stallman — The Anatomy of a Trivial Patent

By Richard Stallman

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:

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:

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.

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”.

This says they are using a server on a network.

This says that the user connects to the server over the network.
(That’s the way one uses a server.)

This informs us that the server is on the net. (That is typical of
servers.)

This repeats the general idea stated in the first two lines.

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.

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.

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.

When you follow a link, your browser reads the contents. This is
typical behavior for a web browser.

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:

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:

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
Verbatim copying and distribution of this entire article are
permitted in any medium provided this notice is preserved.