Cygnus Provides Reminder Everything is Still Patently Unclear

You know those little icons on your desktop that designate the presence of a active program or the same icons in a browser that designate the presence of an active file? The Mac or the PC you have been using them for years, right? Well according to the US Patent and Trademark Office (USPTO) only Michigan based Cygnus Systems, Inc. owns the rights to visual representation of that active program or file via a thumbnail. And Cygnus is suing to protect those rights.

According to Ars Technica, application developer Cygnus first filed for the patent in 2001 as a continuation of an original application filed in 1998. The patent covers thumbnails, or more specifically the navigation and access of files based on representational thumbnails.  In May 2008 US Patent # 7,346,850 was granted.

It is a shining example of what is wrong with the US Patent system which is woefully incapable of dealing with either the rapid growth of new technology online or the expanding number of companies that exist in the space.

Established in 1790, the purpose of the US Patent Office is to issue state and federally recognized writs designed to help protect legitimate innovation. As long as there have been inventors there have been profiteers who seek to use intellectual property as leverage against a competitor or simply to extort money.  In such cases, the existence of a patent can protect the creative, intellectual and financial rights of the holder.

However, modern patent profiteers are not so easily contained.  As Supreme Court Justice Anthony Kennedy stated in a concurring May 2006 eBay Inc v. MercExchange, L.L.C., 547 U.S. 388 (2006) decision,

“In cases now arising… the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier cases. An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.” (PDF of text of the decision)

The Case of Amazon

Let’s take as an example one of the most famous cases, US Patent # 5,960,411, known as the Amazon 1-Click patent which covers a “method and system for placing a purchase order via a communications network.” Twenty-three days after the patent was issued Amazon tried unsuccessfully to wield it as a weapon against Barnes & Noble in a suit filed in 1999.

This led to cries for a boycott of Amazon spearheaded by the slightly fanatical Richard Stallman. Thankfully, mainstream voices like Tim O’Reilly founder of O’Reilly Media, jumped in. O’Reilly stated he felt Amazon’s patent was, “a land grab, an attempt to hoodwink a patent system that has not gotten up to speed on the state of the art in computer science.”

The 1-Click suit was settled in 2002 under undisclosed terms. Shortly after the settlement Amazon CEO and founder Jeff Bezos posted an open letter on patents (interestingly the letter can no longer be found on the Amazon site). In the letter Bezos calls for patent reform stating that the “vast majority of our competitive advantage will…come not from patents”. He does however say that they will not give up their patents; instead Amazon will simply be more careful in how they use them.

But the fact is that Amazon also owns the patents for 404 Pages (US Patent # 7,325,045) and for Affiliate Referrals (US Patent # 6,029,141) among a host of others the common use of which can be found on almost every website online.

Think about it.  How many web designers and how many company websites use 404 pages?  Almost every website you see online today. And as for affiliate referrals, well apparently the whole industry is indebted to Amazon.

Hopefully the backlash from Amazon’s use of the 1-Click patent was strong enough that they learned from the “harvest of ill-will”, as O’Reilly put it, received from the online community. However, Amazon’s current patents, including the cookie patent which is still active, cover more territory than I feel comfortable leaving to any one company’s discretion.

Should Software be Patentable?

The case against patenting software or codeware is made using three arguments:

1. Software is already afforded copyright protection thus it is adequately protected
2. The creation of software code is not dissimilar to mathematical algorithms which are not patentable. According to Gottschalk v. Benson 409 U.S. 63 (1972) “an algorithm or mathematical formula is like a law of nature, which cannot be the subject of a patent.”
3. Software patents currently 17-20 years in term, have a disparate negative impact on freeware and thus stifle innovation.

Personally, I feel that the copyright argument only is tenable in cases where the software is sold via packaging or download. Designed to protect the publication, distribution and adaptation of an author’s work, copyright does a very poor job protecting code tied to web development as any site that has been scraped can testify, due to lack of enforcement ability.

The math argument is indeed perplexing due to the similarities between math and code. However, the way software has evolved, allowing for people and companies to interact with it through hardware in a way that is inherently different than the way math has evolved due to ease of access. The idea that under the math argument, patent law would treat have to treat software different than hardware which through common use it is coupled with, is untenable to me.

Finally there is the argument of the disparate impact on freeware. It is true that large corporations have the legal resources to wield patent legislation tactically against potential competitors. The reverse edge of the argument is that under the current structure corporations also have the legal resources to stifle Open Source software by patenting ideas that are already in the public domain.

Rise of the Prior Art Database

The call for patent reform as put forward by O’Reily and Bezos was published in 2000. In his letter, Bezos states that the process could take “2 years or more”. Ironically that is approximately the date of the settlement with Barnes and Noble. Aside from putting that issue to rest has anything significant change happened?

Although it was mentioned again in a Wired interview, the prior art database which would provide an easily accessible resource of prior art examples to help determine the originality of an invention, that Bezos’ offered to fund in his letter has never materialized.

Even though Bezos wasn’t able to put together his version of a public focused prior art database several other have stepped up to do so. The Open Invention Network launched what it calls the LinuxDefenders.org. Co-sponsored by the Software Freedom Law Center and the Linux Foundation its mission is to, “eliminate poor quality patents…and codify known inventions” thus protecting individuals from larger corporations. It advocates a peer review process for issued patents and the creation of defensive publications to high light prior art instances. Others include Wikipatents and the Peer to Patent Wiki.

Clash of the Titans

In 2007 a coalition of Patent Fairness was formed specifically to help push legislative reform. Members included Amazon, along with: Apple, Cisco, Dell, Google, HP, Microsoft, Oracle, Palm Inc., SAP, Time Warner and Visa among hundreds of others. Their stated mission is to “improve the quality of the patents being issued” and “re-balancing and strengthening the patent system”. Many of their goals were made into what’s known as the Patent Reform Act of 2007 (H.R. 1908, S. 1145).

The problem with reforming the US Patent System, as with any legislative body, is the complex number of special interests and industries such changes potentially impact. The Patent Reform Act sought to create major changes in the current system including:

1. eliminating so-called “submarine patents” often used by patent trolls that purposefully keep patents hidden only to target companies for lawsuits who unknowingly infringe on them
2. allowing for a post-grant review process via petition instead of the current limited options of litigation or USPTO reexamination
3. changing the system from a “first-to-invent” system to a “first-to-file” system which would bring the USPTO in line with the rest of the world

The Patent Reform Act met with heavy resistance.  General Electric, DuPont, Corning and many universities stepped up to defend what they saw as an attack on the biotech and pharmaceutical industries. The AFL-CIO  resisted the bill with concerns (pdf) that it would weaken protection for American manufacturers. And a coalition of headed by the Patent Office Professionals Association expressed concerns (pdf) that changes would “significantly weaken…the strongest (patent system) in the world”.

Despite the resistance the Act did pass the House of Representative in 2007. The Act however stalled in the Senate in 2008 where it fell out of the Judiciary Committee process allowing Senate Majority Leader Harry Reid to pull the bill from the floor schedule.

Cygnus’ Thumb

All of which leads us back to Cygnus Systems, Inc. which filed suit on Friday against Microsoft, Apple and Google over representational thumbnails. The lawsuit lays down a scattershot of features it feels infringes on Cygnus’ patent including those found in: Window’s Explorer, Apple’s Finder, Opera, iPhone, Safari, and Google’s Chrome. The suit not only goes after retroactive damages but also seeks a “permanent injunction” against further infringement.

Now I don’t know if Cygnus’s owner Gregory Swartz is a patent troll. He may genuinely feel he is simply protecting a technology that he developed.  In theory Swartz should have provided the USPTO with any examples of prior art he was able to find, “if” (as the law reads now in Rule 1.56) he was able to find such examples. It is telling that Information Week writer Dave Methvin found “after only five minutes of searching” prior art examples of the thumbnails in a book by David Karp titled Windows 98 Annoyances (got to love the irony in that name).

What I do know is that 10 years is far too long of a timeframe for a patent to be reviewed prior to being granted. As of the end of Fiscal Year 2008 (pdf) there are 1,208,076 patent applications still pending at the USPTO which essentially indicates a 3 year backlog. That’s a clear sign of an organization that doesn’t have the capacity to keep up with the times, much less the resources required to the determine validity of something as minuscule as a tracking cookie or as abstract as a 404 page.

Although the IEEE does raise valid points (pdf) against the structure of the Patent Reform Act as it languishes in the Senate, some sort of reform must happen. I think the easiest methods would be to a) shorten the length of software patents down to around 5 years; and b) modify US patent rule 1.56 to stop rewarding willful ignorance and require companies to search for prior art.

Without reform our industry can never hope to get out from under the thumbs of these patent trolls.

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