Software patents, and the patent process as a whole
Hi Everyone,
As a former patent examiner at the US patent and trademark office (USPTO) and as a current patent agent by profession (who actually writes software patent applications for a living), I am always extremely interested in these types of stories and debates regarding software patents. I think there are MANY issues that we all need to consider here.
1.) What a patent actually IS.
2.) The patent process as a whole, and the current problems of the process.
3.) What software patents actually intend to protect.
4.) Why there are so many patents on seemingly obvious things, and the problems that they cause.
1.) OK. So to start, a patent allows an inventor, or inventors, a specific amount of time (20 years from the filing date of the patent application) in which they may prevent others from making and/or using their invention. Inventors can often assign their patent to another party. Often, this is done when an employee of a large company assigns their patents to their employer (because of an agreement since the invention occurred while working on a company project and the employer pays for the costs associated with receiving a patent). The patent holder or assignee may allow other parties to make and/or use the invention by charging royalties, licencing fees, etc.
2.) The patent process is extremely complex and takes literally years to complete from the time someone comes up with an invention to the time where a patent is actually issued. In short, to receive a patent, one must write a patent application, submit the application to the USPTO, and prosecute the application (respond to any rejections from the patent office, amend the application so that it is narrower, etc.). This USPTO has a major back-log of patents, but they are putting a pretty big dent in that backlog with aggressive hiring and increased production standards from their examiners. As of right now, it might take up to 36 months just to get a first response from the USPTO after someone files an application. To actually obtain a patent could take about 5 years and 10-20k in patent lawyer fees and USPTO fees. So the costs and time of obtaining a patent are very problematic for the little guy, but it's a necessary evil since patent law is so complex. Nonetheless, the UPSTO is trying to cut down on the time by reducing their backlog and encouraging expeditious resolution of patent applications.
3.) Software patents are intended to protect any software idea, whether broad or specific, that is considered non-obvious and new. Patent examiners at the USPTO perform an extensive search of related inventions or ideas that pertain to the claims of the patent application and will typically reject most patent applications on first review since applicants try to get the broadest patent as possible. Also, applicants (or their lawyers) will present tons of arguments as to why their invention deserves a patent. So in the case of the "slide to unlock", the USPTO determined that it was not obvious and it was new based on the merits of the claimed invention and any arguments made during prosecution.
4.) This leads me to why it seems as if there are so many patents for obvious inventions. Patent examiners are just people like you and me and often allow an application after arguing with the same lawyer for months or years about the same thing. Eventually, they give up and just allow the application, although they often stick to their guns and force the applicant to appeal their decision if they keep rejecting it. Usually an examiner only allows applications after the claims of the application have been amended to the point where they cover something so specific that it doesn't overlap with something already out there. That's how it should be done so that the claimed invention is clearly distinguishable over what is already out there...but I have known examiners that are just bad...they allow stuff without even searching what is already out there, and that causes the crap we see here. But of course it isn't all the examiners fault for allowing bad apps...companies pay big money to pursue patents and wear down examiners on things like the shape of a rectangle (which apple has used to get injunctions on samsung) because if they get that injunction which holds up for a month, that's a good chunk of change of people buying ipads instead of g-tabs. The examiners don't mind because every time they respond to arguments made by an applicant, they get money and they get money when they eventually allow the application.
Once a patent is actually issued, the courts HAVE to respect it, even if it seems like a silly patent which is way too broad and obvious...so in short, big companies pay big money to pursue broad patents and the USPTO kind of looks the other way/gives up on arguing rejections since they have a huuuge backlog, and one of the ways to get rid of applications is to allow them. Also, they are collecting TONS of fees for these software patent applications (in fact the USPTO is a cash cow and is the only government agency that actually makes money, and a LOT of it).
There are many software patents out there that protect good ideas so that real innovators can reap the benefits of their labor and ideas, but the system isn't perfect and you're going to have some problems when silly things are patented just to get an injunction on selling products to stifle competition.
