Software, Silicon Valley and Computer Programmers – Part 2 with Bob Zeidman
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course Posted: August 24, 2014 @ 9:16 am
QUINN: And then there’s always the fear that if you put in code then you’re gonna be limiting yourself. I don’t think that’s really a justifiable fear as long as it’s put in properly as illustrative instead of limiting. You know, I mean the folks in the chemical world, they do this all the time. They have example after example after example after example, which is a great way to disclose what it is that you have, what it is that you’ve tried, what it is that you know that works.
ZEIDMAN: Exactly. It seems like if there is some ambiguity in the claims then you would go back to the specification to see if the code there could clarify the claims.
QUINN: I think it certain does. I think it also again would become much harder to say it’s an abstract idea. Because up until this point the common belief was that software should be patentable when you’re tying it in a meaningful way to a machine, i.e., a computer of some sort, whether it’s a PDA or an iPad or a desktop computer. If you tie it to a machine then it’s no longer an abstract idea because an abstract idea is one that’s just out there that’s untethered.
QUINN: But the way that we had always thought we were getting around that is to make sure it is tethered, make sure the steps require it to be done on a computer because then that made it more like Diamond v. Diehr where they said the Arrhenius equation is not what you’re patenting, what you’re patenting is a single use of the Arrhenius equation. Therefore, you’re not trying to patent an abstract idea because it is fixed. But that same logic doesn’t seem to be getting applied now and I don’t know how to get that across to these judges.
ZEIDMAN: Well, also one thing that confuses me in the ruling, and I think in some other rulings, too, is that the judges are talking about 101 patentability but then they keep saying something like if the patent’s not obvious then it doesn’t pass 101. I thought nonobvious had a different basis for rejection. And they also seem to be saying that the invention can be abstract but if you add something unique to it then it becomes patentable. Which to me seems to say that you can still patent something abstract as long as it’s unique. I mean this is confusing in the ruling to me.
QUINN: You’re not the only one that points to that. And this is something that this Court started back a couple years ago in the Mayo v. Prometheus case where they started trying to drive all of 102, 103, and 112 inquiries into 101. Because they don’t really seem to want to do the heavy lifting of deciding whether it is this new, non-obvious, and adequately described. And in Mayo Justice Breyer writing for the courts said that they declined the invitation of the government to apply the various sections of the statute. And I’ve been saying this ever since, it’s not an invitation, that’s what the statute requires. Novelty and non-obviousness are not a part of 101. They have a separate part in the statute. And the real danger is that when you try and put this all into 101 there’s none of the safeguard of 103 obviousness are present. There’s no question about secondary considerations if it’s all in 101 because you never got to the 103 structured analysis. And I’m not sure how to make these things patent eligible. I mean I have ideas but what do you think? If I were to come to you and say, what kind of information should I be trying to get from my inventors to include, what would you say?
ZEIDMAN: Yeah, that’s interesting. What I generally say is to go to the inventors and ask them to describe the most difficult part. I don’t want them trying to figure out any of these 101, 102, 103 issues, any of these issues. I just say tell me what is the most inventive, the most difficult thing you did. I don’t always say “inventive” because a lot of programmers don’t think what they do is inventive. And this brings me to another point. There is so much information coming out of academia in particular that says, oh, programming is more like a trade. Just anybody can do it. The tools are so great, we’ll give you a tool you can just sit down and program. It’s not inventive. And so if you ask a programmer what have you done that’s innovative and inventive they’ll say nothing. And so you’ve gotta say, what was the hardest problem for you to solve. And then can say, oh, this thing was really hard. And then I say, well, describe that to me. And then I figure out how to put that into a patent.
QUINN: Right. That’s an interesting way of doing it. So often this stuff is just conveyed as being simplistic. And anything that’s simplistic is going send off alarm bells when a judge starts to read it because that’s not what the patent system is supposed to be about.
ZEIDMAN: Right. You know, there was a really eye-opening experience for me when I debated a Berkeley professor a few years ago at the Computer History Museum about software patents. Should software be patentable? And I thought I had come up with this great idea that was going to basically get the audience to come over to my side in the first five, ten minutes of the debate. What I did is I asked how many in the audience–there were about 300 people including Steve Wozniak, by the way–and I asked how many people have written software? I think every hand in the audience went up. And then I said okay now put your hand down if you think that pretty much anybody could write software. And you know almost every hand in the audience went down.
ZEIDMAN: What I expected– I thought these people must respect that what they do requires at least a four year education plus experience. All of us have complained about programmers who don’t know what they’re doing. All of us had assignments where we couldn’t figure it out–it took us a long time–and we were really proud when we figured it out. But somehow I think they’ve been brainwashed to think that what they do is just not that big a deal.
QUINN: That’s really interesting because that seems to permeate this Supreme Court’s oral argument consideration in the Alice case where very early on Justice Kennedy asked why this was really an invention because you would just need to describe it to any second year engineering student and they could just program it. It suggests that Justice Kennedy isn’t all that familiar with most engineering curriculums, or that he thinks that with minimal programming training one can simply program anything. One, that is simply not true. And, two, I don’t understand why anybody would ever believe it could be true. I mean, we are reminded practically every time we start our desktops that software doesn’t work the way it’s supposed to.
QUINN: Software crashes. We have critical updates that must be installed our we run the risk of our system crashing, unspecified destruction, and/or our privacy lost because the original coding is vulnerable to exploit. And this is for almost every piece of software we run. It strikes me as just totally bizarre that there’s this concept that anybody can do this. If anybody can do it, then why isn’t it much better than what it already is? If software is so easy why doesn’t it work as advertised?
ZEIDMAN: See, and I think it’s that this technology advancement that I talked about earlier is making us think perhaps in the wrong way. You know, if you had to build an engine, a steam engine, combustion engine even today, I mean today it’s relatively easy but years ago the first one was very, very hard. You would spend years understanding the mechanics of it, the physics of it, doing experimentation and then physically you had to go out and get tools to put this thing together before you knew if it worked. And software and the software tools have made this much easier to skip all the physical effort but not the mental effort. But people think that well if I’m not sweating, if I’m not building something physical and taking a long time then it must not be innovative. And even the people who are doing it–that’s the problem I fight–the people who are doing it don’t think that what they’re doing is innovative.
QUINN: I get what you’re saying. I think I would characterize it a little bit differently. In my experience dealing with inventors, what I see is when someone has come up with something complex and cool they are much less likely to fully appreciate just how innovative and important it is. And so on the other end you have the person who just came up with this idea last night while they were watching TV and now wants to get rich quick without any work. This latter group thinks that what they have thought up is the greatest thing ever and nobody could ever have thought of it, unless of course they stole the idea. This has always struck me as odd and backwards. I think more problematic, when you asked them how many of you think anybody can do this, is the suggestion that there is this belief that software is so ubiquitous that everybody could do it. And since everybody can do it then there shouldn’t be a patent given. That is just fundamentally wrong.
ZEIDMAN: Yeah. And you know I think you’re absolutely right about that. And one thing that I think happens at least here in Silicon Valley where I am, maybe in other places, too, these software people are surrounded by other software people and they don’t realize how unique their talent is. I just thought back on my first patent, and I consider myself a really good programmer. And yet I had to be talked into my first patent by friends of mine who said you should patent this and for almost a year after I made it public I kept saying it’s not that big a deal. I just thought of it, you know, one day and then I took a few months to implement it, and I figured anybody could have done it. That was my attitude, too. But what I didn’t consider was that inspiration about how to implement it. I didn’t realize that until a company came to me and said they wanted to see my software. I showed it to them and they said, oh, we’re gonna do the same thing so we don’t need your software. And then about a year later they contacted me and they said, hey we’d like to buy that software from you. I ended up patenting it a year minus one day from when I made that public presentation about it to that company. I filed a provisional patent because it was a year minus three days when I finally decided to go to an attorney and ask, is this patentable? And he said sure it is. And I said, oh, well, okay, how do we patent it? And when he found out the date of that presentation, we worked over the weekend to file a provisional patent.
But the point is: here I am someone who knows a lot more about patents than most people and I had to be talked into my first patent. Which by the way became pretty valuable.
QUINN: Yeah, yeah, and you hear that story a lot. And I think maybe it’s more normal than we think it is. People don’t think what they’ve come up with isn’t all that special because if they came up with then why couldn’t others come up with it. But still, I just don’t understand the thought process. I don’t think there would be this concept if you came up with this advanced aerospace engineering innovation. Like just anybody could do that! You know, it would take somebody with a certain amount of physics knowledge, a certain amount of aerodynamics knowledge, and you wouldn’t just think that a teenager could do that like Justice Kennedy suggested, which is what he was saying.
QUINN: So there seems to be a disconnect and for the life of me I don’t understand why. I have thought for a long time that if automobile sales were like software sales, nobody would want to buy a car. Everybody would be up in arms – What do you mean every week I have to come back in and get you to fix something? So you sold me a defective product to start with.
ZEIDMAN: You know I think part of it may be the inefficiency of the patent office. Did you read, by the way, about that inspector general report that’s been in the news the last week or so?
ZEIDMAN: And that examiners are not really doing much work, staying at home and getting paid?
QUINN: Yes, I saw that. $5 million over a period of years is real money, that’s for sure, and it shouldn’t have happened, that’s definitely for sure, but the Patent Office budget is over $2 billion a year so we’re talking about a very small percentage. So to some extent it’s almost surprising that there wasn’t a whole lot more wasted really. So many of the Patent Office’s employees don’t work at the office; they work from home. And I think that’s a real problem that goes way beyond the fact that we paid $5 million for work that wasn’t done. I’m not trying to justify or excuse paying bonuses when work isn’t being done, but I think there is a far more concerning systemic problem.
The problem is the patent examiners are not being properly mentored because the people who are in the office are largely junior people and the people who have the institutional knowledge are largely at home. That’s not to say that the Patent Office doesn’t provide training, but there is a difference between training and mentoring. You don’t always go to your boss or the person who’s training you with a question, sometimes you go to somebody who’s maybe got a little bit more experience than you and given the way the Patent Office is set up that’s just not possible. So we have this incredibly dispersed work force and I think it leads to these kinds of problems. I think it also leads to disproportionate treatment between applications and applicants. In some areas it’s just virtually impossible to get a software patent out of the Office. And they issued a patent a couple weeks ago that is so laughably ridiculous it defies all explanation. The EFF has written about it. I’m going to write about it here on IPWatchdog.com as well. It makes you scratch your head. It’s how can that get issued?
ZEIDMAN: Yes, that’s frustrating to me. I see two sides of that issue. One is that a lot of engineers will look at the title of the patent, which doesn’t tell you very much, and say it’s a stupid patent without actually reading it or understanding the claims. I’ve tried to educate them. I wish there was more education in universities about how to read and understand a patent. I try to explain that you can’t read the title of an engineering book and know what the book is about. But that’s what engineers do with patents. But then there are the occasional–maybe not so occasional–patents, particularly software patents, but other ones too that are just issued and yeah, you scratch your head and say why was this issued?
QUINN: Right. I don’t get what’s going on. And it’s not to say that this or any other ridiculous software patents if challenged wouldn’t fall under their own weight. I think they would. But why are we even issuing them in the first place, number one? And then number two—there is extreme damage done when an examiner will issue a stupid ridiculous software patent. Because then the people who don’t want these things to be patent eligible will say, see, see we told you this is what the Patent Office is putting out. And how can you argue that? I mean you can’t. They’re coming up with an example of something that clearly on its face should never have issued. So people start thinking that’s what’s going on across the board. And it’s not. But the perception becomes reality.
ZEIDMAN: That is a problem. I don’t know what to do about it. I think maybe like I said better education about patents. It would be great if engineers in school took classes about patents from somebody who appreciated patents. As you and I have talked before, there’s just a lot of people in academia, especially engineers and lawyers, you know, engineering and law professors who just don’t like patents.
QUINN: That’s right. And they’re told that patents stop progress, they get in the way of innovation and all that other nonsense. The example I always love to use, and these two things really disprove that if you have an objective mind. One is that it certainly hasn’t stopped innovation in the smartphone industry. Smartphones are only about seven years old. They keep getting smaller, thinner, faster. The apps get better. We can do more and more on them. And after about 18 months you have to have the next version. Why? Because it is so much better. So patents haven’t stopped that innovation at all. It’s growing extremely fast. And then two, if patents got in the way of innovation you would expect those countries that have strong patent systems to have no innovation and those countries that have no patent systems to have runaway crazy innovation. And what you see is the exact opposite. Countries without a patent system have no innovation and largely have no economy. And countries with strong patent systems have tremendous innovation and a tremendously functioning economy. Of course, the way that the detractors get around that is by yelling “correlation is not causation.” And what that basically means is I know you have all the facts but I chose to ignore all of them and the best I can come up with is a cliché. Seriously, they have no evidence.
ZEIDMAN: Right, exactly. I’ve been getting into debates with people online. In this one particular forum people were really being nasty to me. And finally somebody had an intelligent argument that I disagreed with but I thanked him. I said now we can debate. You know, you and I disagree but it’s not because I’m a jerk who wants to kill innovation in the United States. So we started, the debate became more respectful when we were discussing facts. Although some people still kept jumping in. I got a bunch of arguments about we need to harmonize with Europe, that Europe has a better system than we do. And I said well why is it there’s so many smart people in Europe and yet very few startups? And when they do want to start a company they come here?
ZEIDMAN: And of course I got this whole thing about well, it’s not the patents, it’s this atmosphere of innovation that we have here. Well, what is that atmosphere of innovation? You can call it some abstract principle, you know, “atmosphere of innovation,” or you can look at what we’ve done in the United States to make that abstract principle into something concrete, which is strong intellectual property laws, and everything I think flows from that. The ability to get capital is partly—not completely but partly—because you can protect your intellectual property here.- - - - - - - - - - Recently I had the opportunity to interview
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About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.