Saturday, February 25, 2006


Patenting the obvious and tormenting the techoisie

Commenting on the imminent injunction against RIM's BlackBerry communication service, which is terrifying remote handheld wireless messaging addicts everywhere, Rob Pegoraro suggests one way to stanch the patent enforcement mania that these days is stifling rather than furthering technological innovation:

The patent office would apply a higher standard of "non-obviousness" -- the idea that a patent shouldn't reward "inventions" any competent individual could have thought up. ("BlackBerry Lawsuit is Patently Absurd", The Washington Post, 25 February 2006, page D1.)

Pegoraro says "higher" standard because US patent law already holds non-obviousness to be a criterion for deeming someone's effort an "invention." I've thought all along, though, that it should be more obvious what "obvious" is. For example, years ago managed to patent it's "1-Click" shopping feature, whereby a shopper can skip the usual lengthy shopping-cart-and-checkout procedure by registering once and provide all his purchasing credentials (name, address, credit card information) in advance. Later, when viewing an item for sale on the site, the shopper can use a "1-Click" button to have the item purchased and shipped with no further typing or mousing. Then Amazon tried to enforce this patent via a lawsuit. By what reason did the patent office issue this protection? The 1-Click feature was no invention. As with any on-line feature, it consists of two components: the model and its implementation.

The model is: a customer goes to a store in his small hometown. He's been there hundreds of times. The storekeeper knows him and keeps his address, phone number, and outstanding account in a ledger. The customer picks a few items off the shelf and brings them to the cash register. The storekeeper computes the total. The customer says, "Put it on my account." The storekeeper says, "OK." The customer leaves, and eventually receives a bill or trues up on a later visit to the store.

In other words, the model is old hat. It's numbingly obvious that it would be great to get a shopper out of the store with a minimum of hassle to the shopper.

As for the implementation, imagine asking a programmer to write a program to print out the prime numbers from 1 to 1000. Any programmer who knows what a prime number is can do that. Let's go up a few levels of complexity and ask a programmer to write a routine for a shopping web site that will store a customer's pertinent data so that later when he clicks a single button next to a view of a particular product, the purchase will be processed and the item will be shipped automatically. I'll tell you: any programmer who knows one or more of the technologies used for that kind of processing in this day and age (.NET, BizTalk, and SQL Server; enterprise JavaBeans and Oracle; etc.) can write a program that will do that, without any kind of true innovation being involved. I mean, there might be a couple of stumpers along the way, and the programmer who solves them might feel mighty proud of himself—but thousands of other programmers would encounter exactly the same obstacles and would just as deftly surmount them.

Solving problems is the nature of programming. Creativity and insight might be required. But in the end, it's a largely mechanical process, and most of it really just can't be classified as "invention." Amazon's argument in defense of its patent (I know, I wrote to them questioning them about it years ago) is the amount of time, effort, and expense that they put it into it. That's irrelevant. It takes a lot of time, effort, and expense to put up an office building, but that doesn't make every office building a patentable invention. The folks at the USPTO need to be less impressed by the obvious than they are now.

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