On the same day – October 22, 2009 – that an Apple patent application relating to embedded advertisements in an operating system published, the Redmond Giant, Microsoft Corporation, had US Patent Application 20090265604 publish, which seeks to protect a method for displaying a graphical representation of the vitality of a social network. This patent application was filed on April 21, 2008, and is one of many related to social networking that Microsoft has pending presently. A search of Patent Office recordings using FreePatentsOnline.com shows there are 19 issued US patents to Microsoft containing the term “social network” or “social networking” and 279 pending US patent applications filed by Microsoft containing one or the other of those terms. This has become an all to familiar business plan for Microsoft, namely scrambling to catch up with whatever the current hot trend is. Of particular note, Microsoft has in recent years been late to the party with respect to portable MP3 players, only introducing the Zune once the iPod had established industry dominance. Microsoft has also been late to the search engine business, feverishly attempting to catch up to Google; they have come to the video gaming market only to be behind Sony PlayStation; and they have famously struggled with operating system failures, requiring a completely new OS to be unveiled just days ago in order to address the embarrassing failure of Vista.
This particular patent application is one that I find rather amusing in a number of ways, not because it is funny but because when I read this patent application I can almost see the scrambling that must be going on at Microsoft Headquarters. As you read this application time after time the specifics, when there are specifics, call to mind a variety of characteristics that are well known in popular online networks or in massively multiplayer online games, such as Club Penguin, which is in essence really more of a social network with kids, but include elements of MMOGs. From a patent perspective, however, the lack of specific information is troubling, and symptomatic of why so many individuals would prefer that software patents simply did not exist.
I am famously (I suppose) a patent advocate and proponent of software patents. I do not see any justifiable reason to exclude from patentability a category of innovation, which is exactly what would happen if software were determined to be unpatentable. There is simply no legal justification for not allowing software patents in general, although we can and probably should ask whether the length of protection granted is appropriate given the short shelf-life of software. That aside, my belief that software patents should be allowable does not mean and should not be interpreted to mean that I think all software patent applications should be granted. The overwhelming problem with software patents is that most should not have been issued in the first place. That is not because software is somehow evil, or that patents harm innovation, but rather because many software patents simply are not specific enough to define what the invention is and how the invention is implemented. In patent speak that means that the invention is not enabled, and Patent Law 101 is exceptionally clear — in order to be entitled to receive a patent the invention must be described so that others could make and use the invention without undue experimentation. When an invention is so described it is considered enabled, and many software patents are simply not enabled.
As I read this particular Microsoft patent application I think there are significant and substantial enablement questions. Unfortunately, in the software patent space the US Patent Office does not routinely and repeatably seem to be able to determine when an “innovation” in the software space is enabled. I place the word “innovation” in quotes because open for discussion is the question regarding whether some (perhaps much) software is really an innovation, as that term is typically used in the patent industry. In general terms in order to be an innovation I think it is fair to say that there needs to be a new and non-obvious contribution. Lets save that question, which is indeed a critical question in the patentability of software debate, but a question for another day.
Before proceeding, the Microsoft patent application defines the basics of the graphical representation of social network vitality by explaining:
The present system, roughly described, relates to a method for presenting a graphical and/or functional representation of the strength or vitality of a contact’s social network. When a user pulls up a graphical user interface displaying contacts in his or her social network, in addition to the traditional profile data for each contact, a virtual object may be displayed. The virtual object for a contact may be displayed in different ways, depending on the strength of the contact’s social network. In particular, as the strength and vitality of the contact’s social network improves, attributes may be added to his or her associated virtual object, or the virtual object may otherwise change, making the object nicer and more impressive than the virtual object for another contact whose social network is less vital. Thus, a user may access a contact in their social network and, by viewing the social network virtual object, quickly and easily get a sense of the strength and vitality of that contact’s social network.
As described, the Microsoft “invention” can be best thought of as a system, which is the way that software and online innovations really need to be characterized and described in order to allow for the maximal opportunity to obtain a patent. Perhaps that will change once the United States Supreme Court decides the Bilski case, which should come sometime late Winter 2010 or more likely during the Spring of 2010. For now at least, and likely even moving forward after a Supreme Court Bilski decision, it is safest to describe software related inventions as a system having an overarching architecture. By doing this you transform something that is potentially of questionable patentable subject matter into something that more neatly and favorably compares with the types of inventions that have been allowed through US history, not something to be under estimated or under valued.
The relative core of this invention, if in fact there is a core, is set forth in general terms by explaining (with emphasis added):
The determination and rendering of the composition of the virtual object is performed by a social network virtual object engine. In general, objective measurement criteria for the strength of a user’s social network may be developed and applied by the social network virtual object engine. For example, the strength of a contact’s social network may be based solely on the number of people in that contact’s social network. The strength of that contact’s social network may additionally or alternatively depend on the frequency with which the contact corresponds with the people in his/her social network. Other criteria such as the quality, variety and/or characteristics of members of the social network are possible. Using these criteria, as the strength of a user’s social network increases, the virtual object engine may cause attributes to be added to the displayed social network virtual object, making the displayed object nicer and more impressive.
I have underlined, bolded and italicized “may be developed,” which in my mind is a central and critical flaw of this particular patent application.
My intention is not to criticize the attorneys who drafted this application, and that is not because I am an attorney and wouldn’t criticize other attorneys, but rather because it is really impossible to know whether this is an attorney problem, which is propagated throughout the application, or whether it is a problem caused by an invention that is not complete and could not be well defined by the inventors. In my experience, frequently in this space the problems are not caused by attorneys who do not know what they need to do, but rather due to an inadequately defined invention and inventors who are unable to articulate the specifics or how they will be carried out. Nevertheless, it is the lack of specifics that lead many to correctly question whether a particular software patent should be or should have been issued. Just because a particular patent should not be granted, or was mistakenly granted, however, does not and should not call into question the patentability of an entire class of innovations. If there is an innovation there should be a patent granted.
In only a few other places are “objective measurement criteria” discussed, and in each situation no more information is provided other than to reiterate that such criteria may be developed. Then the patent application transitions into talking about “objective criteria,” which is almost certainly the same thing, but still details largely lacking. It is explained in one place:
As indicated above, various objective criteria may be used to measure the strength and vitality of a user’s social network. In one embodiment, a straightforward criterion that could be used is simply the number of people within a user’s social network. In such an embodiment, a user having between 0 and i users in their social network would be at a first level, between i and j users (j>i) would be a second level, between j and k users (k>j) would be a third level, and between k and m users (m>k) would be a fourth level. There may be two, three or more than four different levels in further embodiments. Each level would have its own unique virtual object, with a contact’s virtual object getting nicer and more impressive as the contact attains new levels.
It is understood that a variety of other objective criteria may also carry weight in determining the level of a contact’s virtual object. For example, the frequency with which a contact corresponds with people in his/her network via the service provider system 100 may weigh into determining the strength of the contact’s social network. Alternatively, the length of time a contact spends conversing with social network friends through the service provider system 100 may weigh into determining the strength of the contact’s social network. The number of users that have a particular contact within their social network may weigh into determining the strength of that particular contact’s social network (this may be different than the number of users that particular contact has in his/her social network, as users may have that contact in their network, where the contact does not have those users in his/her network). Other criteria may be used, and one or more of the above-described criteria may be combined in various weightings, in order to determine the strength of a given contact’s social network.
So it would seem that the objective criteria include the number of contacts, the frequency with which contacts are contacted, the length of time conversing and other criteria. Call me crazy, but this does not seem to be the type of new and unique aspects that would lead one to characterize the “invention” as an innovation. Furthermore, it is troubling to see over and over again use of “may weigh into determining…” and similar language without ever defining how to determine. At best, it would seem that the patent application leads the horse to the water, but isn’t the real innovation getting the horse to drink the water?
The difference between an idea and an invention is one of execution. Wouldn’t it be great if you could momentarily go back and time and purchase a lottery ticket containing the winning numbers in the Powerball drawing? Saving the time travel problems and ethics identified by Dr. Emmett Brown in the Back to the Future series, that would be awesome! But the fact that I or someone else has identified something that would be great doesn’t mean that there is an invention, it merely means there is an idea. In order to call the flux capacitor or any other device that enable time travel an invention the execution needs to be figured out and then described for others to be able to make and use the invention. This is where many software patents fall down, and unnecessarily so. It is possible to describe the specifics necessary so that a sound written description is provided, which is enabled, but often that is not done, leading to a chorus of frustrated programmers to want the demise of software patents altogether. Unfortunate indeed.