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Confiscation to benefit corporations has been a common practice in patent law, albeit as an underhanded exercise. Patent law is illustrative of the quality of US legislation and the federal bench.
Patents
Intellectual property is granted governmental protection to certain abstractions, notably creative works (copyright), commercial brand names (trademark), and technical inventions (patents).
Patents were intended to engender innovation, and so stimulate a nation’s economic engine. Instead, they have been a drag on innovation, especially in the computer era.
Most computerized devices and software incorporate hundreds of patented inventions. Established corporations with extensive patent portfolios are thus able to stifle competition in their product space, thereby retaining oligopolistic power. The so-called “sport of kings” thwarts the intended purpose of patents.
History
The modern concept of patents dates to 1421. The city-state of Florence, Italy granted the 1st recorded patent to Italian engineer Filippo Brunelleschi for his design and use of a ship, the Badalone (“seagoing monster”).
The Badalone was supposed to ferry supplies up the Arno river to the city for building the Florentine cathedral dome, which Brunelleschi designed. Alas, the Badalone sank during delivery of a load of white marble for making the dome.
The Venetian Senate passed the 1st patent law in 1474, granting monopolies for a limited duration for original devices. This law embodied the principles of patent protection as practiced today.
In 1449, King Henry IV of England granted that country’s 1st patent for stained-glass manufacturing. A patent was a government-granted monopoly, so could be as much a right to manufacture or trade as well as the right to deny others to do so. Toward the end of the 16th century, the Crown’s corrupt abuse of granting monopolies provoked the evolution of the rule of law and judicial power at the expense of the monarch, and set the country on the path to civil war.
US Patent Law
Article 1 of the US Constitution enshrined the right of Congress to grant copyrights to writers and patents to inventors.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ~ US Constitution, Article 1, §8 (The sloppiness of §8, such as granting exclusivity to “discoveries,” not inventions, is typical of the intellectual laxity found throughout the US Constitution, which is a pathetic document in being overly specific in places, utterly omissive of major mechanics, such as the role of the courts, and ladled with significant vagary.)
The 1st US patent act was in 1790. It was a formula for discontent for all concerned: satisfying neither patent applicants nor those appointed to grant patents: the Secretary of State, assisted by the Secretary for War and Attorney General. No appeal was possible.
The Patent Act of 1793 was a response, not so much to patent applicant complaints, but for the benefit of the high government officials whose precious time was drained by patent examination duties. While a patent office was ostensibly set up, patent examination went from rigid strictness to no examination at all. The State Department could not refuse to issue a patent.
It was left to the courts to settle the inevitable disputes. As a consequence, patent fraud became endemic, prompting the Patent Reform Act of 1836.
The 1836 Act created an official patent office, and instituted examination for inventiveness in light of prior art: previously published technological exposition that might show a claimed invention as not novel. The 1836 Act, for the first time, let foreigners file for patents in the US.
Finally, the 1836 law began the patent numbering system. Patent number 1 was granted on 13 July 1836.
Title 35 of the US Code (USC) specifies patent law. It has 37 chapters, with 376 sections (§), of which 149 are used.
35 USC §101 delimits what may be patented.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. ~ §101
Sections 102 and 103 require that a claimed invention be novel. §102 entitles a patent unless it was patented, described, publicly used, or on sale before an applicant claims it. The stricture of §102 is termed anticipation.
103 broadens the restrictions of §102 by adding that a patent may not be had “if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious to a person having ordinary skill in the art to which the claimed invention pertains.” The prohibition of patent grant via §103 is termed obviousness.
The critical statutory sections for obtaining a patent are broadly worded, and therefore have often required interpretation by the courts. This is common in US federal laws, and of the constitution.
Specificity commonly enters statutes only where a special interest desires a clear exception or exemption. Most legislation on commerce is drafted by corporate lobbyists. The sections of patent law dealing specifically with pharmaceuticals is exemplary: craftily worded to give advantage to domestic drug companies.
Intellectual property, especially patents, is an area of US law in which the courts have seen fit to legislate from the bench without being contradicted by Congress. Considering the economic significance of patents, this is astonishing (except when considering that the courts and Congress are aligned in their complicity with corporations).
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Besides making inventions proprietary for a limited duration, a supposed purpose of the patent system is to serve as a public-notice function: to let those know of inventions so that they may be best employed. The greatest of ironies evolved in that regard.
The courts came to regard knowing of a patent and infringing it to be willful disregard, and thereby increased the damages a company must pay to compensate the inventor. Hence, other than checking to see if they could patent an idea, companies studiously ignored patents granted to others. Hence, the critical public-notice function that patents could provide to promote invention was defeated by judicial idiocy.
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Throughout American history, the rigor of patent examination has ranged widely, from literally granting every patent applied for to strict examination. Examinations were lax in the 1990s, and only began to tighten up after publicity about how pathetic the patent office had become.
Absurd patents abounded. In 1993, the patent office issued patent 5,443,036: its invention was using a laser pointer to exercise a cat. US patent 6,368,227 claimed a “method of swinging on a swing.” Though they proved an embarrassment to the patent office when publicized for granting such dross, these junk patents had piddling value.
The real problem, from a corporate perspective, was that individual inventors were innovating lucrative inventions. A small industry of contingent-fee lawyers sprang up to help patent holders monetize their patents against major corporations. The big money was in software technologies, where skillful designers could patent inventions via the investment of nothing more than deep technical knowledge coupled with sheer creativity. (Of course, inventions always spring from skill and creativity. The difference between software and other art areas is that the cost of experimentation to verify practicality is exceedingly low for software.)
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From the early 1990s, Microsoft was continually hounded by inventors for infringing software patents. In some instances, Microsoft blithely stole technology.
Such was the case with Stac Electronics’ disc compression utility. Microsoft aborted negotiations with Stac to license their technology. Instead, Microsoft simply stole the technology, incorporating it into their new operating system.
Stac sued for patent infringement and won. Microsoft, despite having examined Stac’s code, was able to skirt the charge that their infringement had been willful, which might have trebled damages. In the finale, Microsoft settled by investing in Stac and buying it off for ~$80 million.
In response to being pummeled for patent infringement, computer companies, Microsoft most prominently, lobbied Congress for legislation to relieve their patent infringement blight. They blitzed the media to generate publicity for their cause.
Computer companies generated the myth of evil “patent trolls” practicing extortion – which was really nothing more than inventors wanting payment for their inventions being infringed: the basic right of the patent grant, with compensation being the common practice in the country for 2 centuries.
Politicians took up the cudgel with toothless sympathy. The courts more effectively responded to corporate complaints by changing the law from the bench. Patents became much more difficult to obtain and enforce in the early 21st century.
No area of law has been so radically altered by the courts as patent law. This owes to a combination of factors: lack of statute specificity, and the nature of patents, but particularly the pro-corporate corruption prevalent in the courts. In the instance of patents, through extra-legal rulings, courts are able to achieve outcomes that legislation simply could not, as such blanket bias in statute would be so glaring as to incite revolt.
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Corvids are able to solve complex problems entirely with mental prowess; no need for fiddling about. In contrast, the limitations of the human mind mean that improvements are commonly found by trial-and-error. Compared to crows, people are bird-brained.
Hence, throughout history, human invention has almost always been incremental. Innovation has often been had by combining features appreciated before only in disparate contexts.
Analysis and combination necessarily underlies all inventions. ~ Abraham Lincoln
The most significant blow to patents as intellectual property came with the 2007 SCOTUS decision in KSR v. Teleflex, where the court threw away the need for evidence in invalidating a patent. KSR’s insidiousness came via dealing with inventions that arose from novel combinations of known functions.
Prior to KSR, the CAFC had required some scintilla of statement that prior art technologies might be combined to invalidate a later claim to invention. This had proved inadequate to staunch the assertion of patents against the mega-corporations that the federal government succored; so, the supreme court threw open the door to judicial caprice by entirely removing any evidentiary standard whatsoever.
A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. ~ SCOTUS in KSR v. Teleflex (2007)
Under the KSR regime, ~95% of granted patents might seem obvious in light of prior art. KSR provided a clear signal to lower courts that they had the power to kill patents willy-nilly. In promoting plutocracy, the courts did just that.
Active Toolbar Tool Groups
Bill Gates’ Microsoft struck it rich by providing the operating system (OS) for the IBM PC (personal computer), released in 1981. Microsoft’s OS embraced no innovation. Following hoary tradition, the IBM PC required users to type in commands to get anything done. Its graphic capabilities were laughably crude.
Popular computing evolved from command-line input to a graphical user interface (GUI) with the introduction of the Apple Macintosh computer in 1984. Computer graphics and GUIs were by no means new, but until that time, no inexpensive personal computer employed graphics to allow users to see and easily select various functions.
Apple’s Steve Jobs had been impressed by the GUI technology he saw when he visited Xerox’s research lab in Palo Alto, California. He copied many of the ideas he saw at Xerox for the Macintosh personal computer. Besides a keyboard, the Macintosh tacked a mouse onto the computer, letting a user move an onscreen cursor to select graphic objects and make things happen.
Microsoft copiously copied Apple, coming out with its Windows OS, with an inferior GUI, in 1985. From that rather lame copycat beginning, Microsoft ceaselessly made its GUIs more sophisticated, until it went thoroughly schizophrenic about its GUI with Windows 8.
The original GUIs had menus of commands that were listed on a bar that hung at the top or bottom of the screen. In the early 1990s, Microsoft came up with the idea of a toolbar: a visible row of iconic buttons, whereupon a user simply needed to click a button to do something, such as open or save a file.
In allowing feature activation in a single click, toolbars were more accessible and convenient than drop-down menus. They quickly became a GUI norm on both the PC and Macintosh. Microsoft patented its many toolbar inventions over the next decade.
Toolbars became cluttered with a plethora of tools, lessening their convenience. Microsoft came up with the idea of visually segregating toolbar groups. What could be done to a document (e.g., open, save, print) constituted one discernable toolbar group. Editing tools for the contents of a document were another such tool group.
The problem with application programs, and the importance of toolbars, was in organizing the plethora of functions on offer. The answer lay in hierarchical categorization: presenting the most important tools on first display, with the option to see secondary tools in each functional group.
With much ballyhoo, Microsoft introduced a new kind of toolbar with its 2007 Office, which it called a “ribbon.” For the first time, this new toolbar had tool groups that were active. A user could click in a specific area of a tool group and more functions and options for that group would appear. This allowed a nesting of tool functions: simplifying the look of the toolbar while making readily accessible a fulsome complement of tools.
Microsoft promoted this new toolbar technology. It quickly became an industry standard, as the advantage of “active tool groups” was readily apparent.
Microsoft filed a patent application for this active tool group feature in 2004; but Microsoft did not invent active tool groups.
American software developer and inventor Gary Odom had come up with the idea of active toolbar tool groups 3 years earlier, in 2001. Odom filed an application with the patent office and prosecuted (argued for) it himself. The result was US patent 7,363,592.
After Office 2007 came out, with active tool group technology widely used in commercial software products, Odom sued numerous software companies for infringing his ‘592 patent, including Microsoft. Like many other contemporaneous inventors asserting their patents, Odom confronted a debacle that exemplified how US federal courts toady to corporate interests, disregarding the law to do so.
At Microsoft’s urging, the federal district court found ‘592 obvious in light of Microsoft patent 6,057,836, where Jude Kavalam was the 1st-named inventor.
Kavalam had noted that “toolbars typically present groups of command buttons”; the very tool groups on a toolbar which Odom referred to in his patent, as shown below. Both Odom and Kavalam used identical nomenclature.
Odom was well aware of the ‘836 Kavalam patent: he disclosed it to the patent office during prosecution of the patent that led to its grant. The patent office allowed Odom’s patent over Kavalam, as Kavalam’s disclosure explicitly went to toolbar innovations, not the active toolbar tool groups which Odom claimed.
The district court ostensibly came to its conclusion of obviousness by confusing toolbar and tool group, something which was distinctly delineated in both Kavalam’s and Odom’s patents. Further, the court ignored 2 very telling, legally-compelling, secondary indicators of non-obviousness: 1) that Microsoft itself thought that the invention was patentable, by evidence of Microsoft later filing its own claim to the same technology; and 2) the commercial success of Microsoft’s 2007 toolbar “ribbon” indicated non-obviousness.
Microsoft did not even contest Odom’s arguments about secondary non-obviousness indicators, so comfortable were they that the judge was in their corner; this despite there being established case law that such indicators could be dispositive with regard to the obviousness of a patent.
Evidence of secondary considerations may often be the most probative and cogent evidence in the record. It may often establish that an invention appearing to have been obvious in light of the prior art was not. This court has previously identified, inter alia, commercial success, satisfaction of a long-felt need, and copying to be relevant factors. ~ the CAFC in Spectralytics v. Cordis (2011)
That evidence is ‘secondary’ in time does not mean that it is secondary in importance. ~ SCOTUS in Graham v. John Deere Co. (1966)
That 2nd indicator of non-obviousness – commercial success – went to the root of the problem for Odom. The claimed invention, which quickly became an industry standard, was immensely valuable: worth over a billion dollars in reasonable royalties over the life of the patent. So, federal district court Judge Michael Mosman ignored the law and decreed ‘592 obvious. In doing so he legally contradicted himself, construing the claimed invention differently for infringement vis-à-via validity. Mossman rigged the outcome every way he could.
Mosman is somewhat typical of those on the federal bench, in having amassed a track record as a clueless adjudicator of patent cases: unable to properly construe claims or write decent decisions. On appeal, the CAFC has repeatedly had to send cases back to Mosman to clean up his mess.
As with judges who easily follow their biases, the button-down Mormon Mosman had displayed distaste for Odom’s patent assertion from the get-go. He blithely indulged his corruption, as the corrupt do.
Mosman is by no means alone. Many judges struggle with patent cases. Involving both complex case law and technological detail, patents are one of the most difficult areas of law. Over 1/3rd of all district court decisions are at least partly reversed upon appeal.
Judges are seldom the sharpest tacks in the lawyer box. Unsurprisingly, that distinction generally goes to attorneys that represent corporate interests. (Follow the money.) Exceptions are found in exceptional attorneys who take the high moral ground and represent the public interest, such as Ralph Nader.
Alas for Odom, the fix was in. The CAFC affirmed the lower court’s decision, especially affronted that Odom alleged bias by Mosman. Like Mosman, the appeals court ignored cogent arguments that ‘592 was not obvious under the law.
The CAFC found ‘592 “an insignificant advance over Kavalam.” Secondary considerations of non-obviousness were “weak.” That was all the analysis the CAFC could muster.
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The theft of Odom’s patent by swindling courts was no isolated incident. In the early 21st century, the courts stole hundreds of billions of dollars from inventors by declaring their patents obvious, or through other chicanery.
SCOTUS and the CAFC have practically nullified the right of inventors to enforce their patents. The sport of kings is reserved for the country’s royalty: corporations.
Vexatious patent litigation continues to grind through our already crowded courts. One sign of potential abuse is when a single patent holder sues. ~ CAFC Chief Judge Randall Rader in 2013
Software Patents
Unlike other technical arts, which are restricted by the chemistry and physics of matter, software can be a purer act of creativity, as its construction is constrained only by the limits of the human mind. The most influential inventions in the late 20th century into the 21st have been in software. Incongruously, governments have been reticent to recognize software as worthy of intellectual-property protection.
Europe never allowed software patents. By legislating from the judicial bench, the US did. (US courts regularly legislate, which is unconstitutional. Routine breaching of constitutional restraints by authorities in the US demonstrate how fundamentally lawless this nation is. Political conservatives – who portray themselves as the staunchest defenders of the constitution as written – tend to be the most egregious offenders, at least from a civil rights standpoint.) The CAFC declared business methods codified in software as patentable in its 1998 State Street decision.
A machine programmed with software produces a useful, concrete, and tangible result. This renders it statutory subject matter, even if the useful result is expressed in numbers, such as price, profit, percentage, cost, or loss. ~ the CAFC in State Street Bank v. Signature Financial Group (1998)
In the years that followed State Street poured a deluge of patent assertions against behemoth software companies, so the courts reversed themselves, though cunningly: leaving enough ambiguity that judges could exercise their whims.
American inventors Bernard Bilski & Rand Warsaw had their patent application for risk management rejected by the patent office. They appealed to the CAFC.
Though they could have legitimately found the application legally remiss for sheer sloppiness (§112), CAFC declared the claimed invention unpatentable under §101. Bilski appealed to the supreme court, which categorically rejected business methods as not patentable in a 5–4 decision (Republican majority).
Expressing that “courts should not read into the patent laws limitations and conditions which the legislature has not expressed,” pro-corporate justices on the supreme court did exactly that (duplicity being the American courts’ stock-in-trade).
The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. ~ SCOTUS in Bilski (2010)
Thus began a cacophony on what constituted an “abstract idea”: a concept unmentioned in the relevant law, §101. A method of drug treatment was patentable, but not immunization. GPS (computerized location determination) was patentable, as “there is no evidence here that the calculations here can be performed entirely in the human mind”; but validating a credit card was not, despite such a process being beyond sheer mentation.
Both members of the supreme court and this court have recognized the difficulty of providing a precise formula or definition for the judge-made ineligible category of abstractness. ~ the CAFC in Ultramercial v. Hulu (2010)
Amid the illicit hand-waving, trends were apparent. Courts basically eliminated business-method patents. No longer was a “useful result is expressed in numbers, such as price, profit, percentage, cost, or loss,” patentable. The supreme court made it clear in Alice v. CLS Bank (2014) that the financial sector was off limits to clever patentees.
The claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention. ~ SCOTUS in Alice v. CLS Bank (2014)
With Alice, software and business-method patents went down the rabbit hole to oblivion, damned for claiming “abstract ideas.” Any logician worth his salt would understand how ludicrous the spearhead of the assault was. In claiming categories of function, patents are necessarily delineations of abstractions.
The only real issues are whether a claimed invention is of practical use, and whether claims are sufficiently delineated, such that one of skill in the relevant technical art would understand their scope. §112 of patent law requires “claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”
The CAFC descended into gibberish over what constituted an unpatentable abstract idea (as opposed to a patentable one).
Abstract ideas may still be patent-eligible if they contain an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application. ~ the CAFC in Planet Bingo v. VKGS (2014)
The courts continued to tighten the noose on patenting software, eliminating claims to apparatuses that relied upon software that did not produce a mechanical result (as opposed to a useful one).
For all categories except process claims, the eligible subject matter must exist in some physical or tangible form. ~ the CAFC in Digitech v. Electronics for Imaging (2013)
Such nonsense contradicts the law in what is patentable. §101 requires only that a “process, machine, manufacture, or composition of matter” or its “improvement thereof,” be “new and useful.” Novelty and utility were the metrics that the legislature demanded; how cerebral the invention was had nothing to do with its patentability.
The judiciary was reticent to decidedly wipe out software patents in toto, for fear of its potential financial impact on the software industry and its sizable patent portfolio. Historically, venture funding for software startups in the US has been premised upon their having new ideas, often signified by being patented, or at least appearing patentable.
Instead, recent patent case law decisions provide fodder for the patent office to reject software patent applications, so that the problem is gradually eliminated at the root with minimal disruption to established businesses. The stock market took no note of the profound change in patent law with regard to software, which wiped out well over a trillion dollars in assets of the largest software corporations. The courts are crafty in their corruption.
