John Chamberlain
Developer Diary
 Developer Diary · You Heard It Here First · Friday 5 March 2004
The Broken Patent System
Today the patent office belatedly overturned EOLAS' infamous embedded applications patent (No. 5,838,906) which some clueless judge had already upheld against Microsoft to the tune of half a billion dollars. The larger question is how such a patent could get so far in the first place. This patent succinctly entitled, Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document was filed in 1994 in conjunction with work done on Mosaic/Netscape and granted in 1998. The U.S. Patent Office only interceded after an enormous public including such pleas as Tim Berners-Lee's letter to the head of the patent office. Apparently having dozens of the most important computer scientists in world calling them is the only way to get their attention because I have never heard of the patent office reviewing a patent before.

The general approach of the patent office seems to be to read the patent only to the extent necessary to make sure its format is correct and then grant it. This takes four to five years for them to do. If there is a problem with the patent they seem to think that is the job of the courts to decide. Since the cost of litigating a patent is astronomical the result is that once a patent is granted, no matter how bogus, the owner can then terrorize anyone trying to use a vaguely similar technology. And vague is the operative word here. Patent writers encircle their works with every conceivable claim possible no matter how remote and often cross-file additional patents to further obfuscate the matter.

It has reached the point where patents have stopped encouraging innovation and begun to be a hindrance to it. This would not be a problem if the patent office simply did their job and rejected obvious or vague patents, but sadly this is not happening. Part of the difficulty is that many of the so-called inventions are not inventions at all, but are normal evolution in technology. For example, it does not make sense yet to use radar to automatically dock trucks, but eventually it will become a possibility. I could write a patent right now to the effect of "radar used to automatically dock a truck" and it would get accepted (and probably upheld). It's a totally obvious idea, but has not come of age. So oblivious has the legal system gotten to the concept of what is obvious that intellectual property lawyers do not even attempt to challenge a patent on its merits. Instead they try to show prior art. Surely we can find an old example of radar truck docking? That's how they think.

The whole economy is the loser in this ridiculous charade of bogus patents and the real inventors get lost in the haze. Even worse there is no clear out of this mess legislatively or legally. It appears like the system is going to be broken permanently.

Maybe I should file a patent about automatic truck docking...

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