Patent Failure By Stephen Redd, English 101 In the spring of 2012, the Samsung Galaxy S3 Few argue that the existing software patent became one of the most eagerly anticipated system is a healthy one, but deep controversies smartphone releases ever. Expected to ship in over how to improve the situation remain. One the summer of 2012, continuous parades of T.V. camp argues for the elimination of software commercials, geek bloggers, and YouTube patents on the premise that they do more harm reviewers foretold the imminent arrival of the than good, while another argues for reforms to new king of smartphones. Three months and 18 restore sanity and continue to encourage healthy million units later, the Samsung Galaxy S3 software innovation. Until the matter is settled, it bested Apple’s iPhone 4s to become the most is likely that costly and abusive patent popular smartphone on the planet (“Strategy infringement cases will continue to plague the Analytics”). Prior to release software industry. though, Apple Computer Corporation attempted to garrote Patents have a long Samsung and ensure the history and are a complex premature death of the topic comprised of law, prophesized king of smartphones. judicial precedent, and international treaty. Apple’s attack against According to the Oxford Samsung alleged that the phone’s English Dictionary Online, software was composed of ideas a patent is “a license from a to which Apple held the patents. government conferring for a The problem for many is that set period the sole right to these patents, and the inventions make, use, or sell some claimed thereby, seem outright process or invention; a right absurd. As an example, Apple conferred in this way.” Put patent 305 claims that Apple concisely, a patent is a invented the idea of rounding the government-approved corners of square icons (Smith). monopoly. Apple is far from the only Article I of the U.S. company to litigate seemingly Constitution obliges the inane software patents. In 1999, government to grant patents Amazon.com won the infamous by proclaiming they one-click case, preventing rival “promote the Progress of Barnesandnobel.com from selling Science and useful Arts, by books through their web site via a Figure 1 Apple phone/Wikimedia Commons securing for limited Times single click payment method to Authors and Inventors (Hansell). In 1994, E-Data Corp. attempted to the exclusive Right to their respective Writings claim ownership over the entire World Wide and Discoveries” (Sec. 8, Cl. 8). The Patent Act Web through a patent granted six years prior to of 1790 placed the initial burden for patent the invention of the Web (“Everlasting oversight onto the shoulders of the Secretary of Software” 1455). Thousands of similar cases War, Secretary of State, and the Attorney over the years feature one company bludgeoning General. By 1836, the task had grown so another with incremental, trivial, or obvious onerous as to prompt the establishment of an software patent claims. official Office of Patents. Since then, numerous ELF 2013 (Vol. 5) 3 additional restructurings culminated in today’s without the need for specific physical U.S. Patent and Trademark Office, and the rules characteristics or outcomes (Nieh 303). by which it operates (“A Brief History”). Software patents have always been a The issue of what should be patentable, and contentious subject, raising many concerns for how long, has always been thorny; however, across the industry. Is software an invention the justification for patents is rather simple. deserving of patent protections, or does the Invention is time consuming and risky. An nature of software render it ineligible? Are inventor may labor for years only to fail, or a patents a useful means of incentivizing software rival inventor may beat him to market. Patents innovation? Does the industry benefit from encourage inventors to brave such risks by patents, or has patent litigation resulted in more guaranteeing a limited monopoly over successful damage than good? These issues are growing in inventions, during which time inventors can importance every year, but definitive answers recoup their costs and earn a profit (Bessen and remain elusive. Maskin 2). Since inventions are of immense public value, patents also ensure public Opponents of software patents have long disclosure, thus preventing advanced knowledge contended that the nature of software makes a from following jealous inventors to their graves poor subject for patent protection. Traditional (Nieh 307-308). patents include a “functional claim” describing what result to be achieved, as well as a “method Traditional patents operate under complex claim” detailing how the invention achieves that rules, but patent applications must fully describe result (“Everlasting Software” 1457-1460). In the intended functionality, as well as the means reviewing patent claims, the Federal Circuit by which the functionality is achieved. For decides validity based on the claims made in the physical devices, this amounts to a detailed filing. Concentrating on the functional claim of description of the idea, as well as the physical the invention’s achievement comprises the characteristics of the device implementing the “written description requirement” doctrine, idea (“Everlasting Software” 1457). The Patent where a focus on the method claim is Act of 1952 codified the modern requirements of “enablement doctrine” (Merges 1648-1652). a valid patent under U.S. Law. It established a list of the specific categories of invention For patent disputes, both functional and considered patentable and formalized the method claims play a role. With physical requirements that the invention be novel, non- devices, enablement doctrine has been obvious, and useful (35 USC 101, 2007). dominant; the result being that infringement cases are decided by the merits of the method The 1952 Patent Act does not explicitly name claim. This is important because the method software as patentable. In 1981, the Supreme claim of physical patents specifies numerous Court ruled on the case of Diamond v. Diehr, physical characteristics and behaviors. A concluding that software does fall under the subsequent invention, having a similar statutory label of a “process.” This early case functional claim to the first, can avoid infringing centered on software as a mere component in a by achieving the same result in a different way; larger invention with physical results, the both having the same functional claim but molding of rubber. While the case made differing in the method by which the function is software patentable, it did so only in a narrow accomplished. This allows new, and hopefully set of circumstances. Software patents as we better, versions of prior inventions to develop, know them today only became possible in 1998 without infringing prior patents (“Everlasting when the Federal Circuit Court ruled in the case Software” 1457-1458). of State Street Bank & Trust Co. v. Signature Fin. Group. This case set the modern precedent With software, incremental innovation under which software became fully patentable without infringing prior patents becomes troublesome. Software has no physical ELF 2013 (Vol. 5) 4 characteristics, and so the functional claim is software. Patents also require that the functional essentially the entire claim. Any method claim claim be novel, and non-obvious. If all software in a software patent tends to be highly generic is an incremental advance over previous and vague. This has resulted in the Federal developments, then it follows that all software is Circuit largely abandoning enablement doctrine an obvious invention, lacks novelty, and is in favor of written description requirement when therefore not patentable (Nieh 319-320). deciding infringement cases for software patents. Since As interesting as the software patents are claimed patentability arguments may by functionality alone, they be, the 1998 State Street encompass a much wider decision by the Federal Circuit range of invention than is temporarily settled the matter typical for physical patents. by proclaiming that software Software will always infringe is patentable under current if it achieves similar law. The discussion over the functionality regardless of how last decade has shifted from that functionality may be whether software can be physically implemented patented, to whether it should (“Everlasting Software” 1464- be. Today’s critics ask 1466). The functional basis for whether software patents do software patents also results in spur innovation, encourage a broader scope of claims than new entrants to the market, for physical patents. This often and protect R&D investments allows software patents to (Merges 1628-1629). apply to seemingly unrelated software inventions, even ones As with general the original inventor could not patentability, the arguments have anticipated (“Everlasting around the usefulness of Software” 1459-1460). software patents also rest largely on an examination of Proponents of software the nature of software. In an patents acknowledge the M.I.T. working paper, James unusual breadth of software Figure 2 Samsung Phone/Wikimedia Commons Bessen and Eric Maskin patents and the abuse that explain that software sometimes follows, but assert that the broad innovation is not just incremental, but also scope is simply a by-product of necessarily complimentary in nature: generic and vague method claims. Simple reforms could narrow the scope by either This is because these are industries in which returning to a balanced version of enablement innovation is both sequential and doctrine, or through modification to the complementary. By “sequential,” we mean application process that narrow the scope of that each successive invention builds on the functional claims (Merges 1654-1657). preceding one—in the way that Windows built on DOS. And by “complementary,” we mean that each potential innovator takes a Opponents of software patents hypothesize somewhat different research line and that overly broad claims are the unavoidable thereby enhances the overall probability that result of an inherent incompatibility between a particular goal is reached within a given software and the patent system.