Patently Absurd

I admit, there are just a few things that crawl all over me. Insurance and Patents are two of them. While I would love to go into a longwinded diatribe about the evils of insurance, I have some thoughts on patent policy that I just need to put out there. I am absolutely all for corporate and individual innovations, and I firmly believe that any original innovation needs to be protected from rip-off artists and scammers. The people and products on the bleeding edge of innovation are bastards when it comes to pirating and intellectual property theft. Ideas and true innovation are in such short supply that anything truly novel is rare indeed. Exploiting the secrets of your competition, or protecting the trade secrets of your own brain trust has become a food fight with lawyers. This, I get.

The process goes wrong, at least in my mind, when the quest for patents becomes a goal in itself. This is when a company starts measuring success or competitiveness from the number of patents filed. This falsely portends to indicate some measure of innovation or creativity. It seems to support a sense of breakthrough and accomplishment, however false and hollow it may be. OK, it is pretty creative to think of twisty legal language to justify a patent on something totally obvious. It is not, however, under the purview of the Patent Office to bend to the arguments' self-serving logic. I am very disappointed with the PTO for falling under the spell of legalese and lack of patent precedent, and for not using their own brain power. The lack of a previous patent is not grounds for granting one, common sense is. The examiners need some kind of threshold to decide if a mechanism or construction meets the "different" requirement. The wheels really start coming off the cart when you apply such a criteria to a "business process" application.

But, how do you measure an innovation level? How can you tell if it is different enough? This is where the slippery slope starts. Let's pretend you live in 1900, in Chicago. You walk down to your local grocer and pick up a few vegetables and a chicken. They cheerfully greet you by name, ask about your daughter without being creepy, and you pay him in cash. There are no known patents for this basic process. A HUNDRED YEARS later, a company wants to patent a "business process" where you go on a website, where your credit card and other personal information is already stored, and do some shopping. You hit just one button, and the total of your purchases is charged to your credit card. Yes, this was somehow considered broundbreaking enough to be granted a patent. Why?

There is obviously a difficulty in evaluating novelty here. First, the basic process is not new or even remotely different from the everyday transactions people perform every day. It seems that doing this on the web is somehow new. I happen to be a web programmer, and I can quickly think of perhaps a dozen ways to make this basic transaction happen in code, cookies, databases and HTML. Maybe they patented something unique in the procedure or programming? No, it was just the idea on a one-click checkout on the web. Perhaps they discovered a new way to authorize or accept payment? Nope, just a credit card with approval. They must have thought of a procedure that brick and morter stores could steal? No, the brick and morter stores had something more original. Revolving credit. OK, so why?

You see, the marketers at this company thought the idea of a single click checkout was some new feature or convenience that made them stand out in the sea of websites where you had to click more than once to checkout. Mainly, the extra clicks at those other sites were to confirm you really meant to purchase the contents of your cart, but I digress. This company thought it was a differentiating factor, so they hired lawyers to patent this very general process, and the PTO agreed. The underlying issue here in my mind is simply one of scope. The so-called innovation was technically different from related websites that provided similar mechanisms in a similar format in the same media. The scope of the process innovation was somehow narrowed in the minds of the PTO examiners to just the web. In one way or another, the lawyers likely pitched the innovation in a narrow enough scope to warrent consideration. On such a narrow scope, it may have been different, but not a true novel approach. It could be a novel approach for the web, but it is not a transactional innovation, and it is certainly not a new "business process." The PTO examiners considered the difference relative to their competition in the most narrow sense.

To fix this, the PTO must examine from a more general scope. Patents are about competitive protection, but the scope of the competition must be kept broad and plausible. If the examiners had considered the brick and morter retail trade as the competitive scope, I doubt it would have even gotten a review. Just by fixing the scope to the true field of competition, I think a lot of the recent bioscience and tablet non-sense could be curtailed. I understand how hard it is to be original and novel in a rapidly changing marketplace that demands improvements and reinforces innovation. Looking to technicalities and twisted logic to prove something is original only feeds the corporate ego, it does not put products on the shelves. Give the public a break and spend some time actually creating new ideas instead of defending marginally different ones.