SAWS? What SAWS? Nothing To See Here (Anymore), Folks…

In such a time as this, it helps to have a translator so that We The People can understand what just happened here.  Thankfully, IPTT is on the job with the PTT™ (Patent Troll Translator), which can be used not only to translate patent troll-speak, but USPTO-speak as well.

And here we go…

“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads.

Translation?

“By ‘marginally utilized’ we mean ‘arbitrarily utilized, depending on who offered to pay us the most’, and by ‘provides minimal benefit’, we mean ‘Oh, hell, you caught us!’

Further, upon being asked by Dennis Crouch (and probably others that it’s too early in the morning for me to go dig up) to provide statistical data surrounding our Sensitive Application Warning System, we decided that we’d better kill it before FOIA makes us disclose even more information, that will make us look stupid at best and devious at worst.”

Here’s the beef:  the USPTO had a system that allowed the examiners to flag certain applications for extended review and they didn’t have to tell anyone they did it.  Eeps.  Here’s how the process is supposed to work:

Usually, when you submit a patent application, it requires the approval of one or two examiners who work with the office. Those applications can take anywhere from 22 to 29 months to be issued, depending on fees you pay to speed up the process or the lawyers you have representing you.

Emphasis mine.  Oh good grief.  Ms. Lee?  This is something you need to fix.  You shouldn’t be able to pay your way to the head of the line, and you need to have examiners who are lawyers so that they are on a level playing field with the people submitting the applications for the inventors.  I said all this once before after interviewing a former examiner.

“The patent office has a tremendous latitude in making these illegal practices, whether it’s by SAWS or other processes,” Hyatt told Yahoo Tech in January.

That’s not the 1/2 of it, if anything my interviewee has to say about it is true.  I’m really hoping that Michelle Lee is able to make some changes in the examination process for two reasons:

  1. It will improve the quality of patents.
  2. It will take that bat out of the hands of inventors who want to gripe that the process is the problem.

Because as for #2 right now, they’re right.

<digression>

Beyond the fact that the program wasn’t publicized and the people stuck in it may or may not have known (did they, can anyone confirm?), there’s this bit that sticks in my craw worse than line jumpers:

So, say you’re an inventor who has founded a startup. You’re waiting for your patent to be issued, so you can start your company. In fact, some of your funding may depend solely on your ability to secure the rights to that innovation. If you were placed in the SAWS program, you could be potentially dragged along for years. Meanwhile, you might lose funding or face additional competition.

WHY does funding depend on a patent being issued?  I can’t get over that.  If a patent is all you have, you need to rethink your pitch deck.  Besides which, to the point of that last sentence, competition is good!  We all get better by playing against someone who’s better than us, right Gene Quinn? I dunno, like I said about the Fuzzibunz lady: are you an entrepreneur or a patent-preneur?

</digression>

In the end, there’s two ways to look at the death of SAWS, the first being this quote by Kate Gaudry:

“This is a good indication that they’re willing to objectively step back and look at their programs and efforts, and listen to their stakeholders,” Kate Gaudry, an associate at Kilpatrick Townsend & Stockton LLP, told Yahoo Tech. “And change what needs to be changed.”

Um, okay.  Let’s see if Thomas Franklin, also of Kilpatrick Townsend has a better take:

“I’m not sure this is a win for transparency to say: you found this program so we’re shutting it down,” he told Yahoo Tech.

Yeah, the second one.

JustSayin_small_New

IPTT

 

 

Patent Litigation Down, Everyone Cheers! Turn Down For Whaaat??

Like everyone else on the internet, I went there.  It’s the only non-Taylor Swift song I’ve downloaded all year and frankly, I stand unashamed to admit that.  She speaks to my late-teens, early 20’s angst like no other.

{Wait, did I type that out loud?}

There’s been a lot of talk about how “patent litigation is down and look here, …don’t you know that means the patent troll problem (that people have been saying doesn’t exist) is over like clover?”  But a) are the number of patent litigation suits really going down, and b) does it matter if they are and c) how can you people continue to say things like “Behold, the patent troll problem is a thing of the past!” and “There’s no such thing as a patent troll!” at the same time?

Jackie Chan Confused

What is wrong with you people?

 

Lex Machina came out with a report that patent litigation filings were down 40%.  To wit:

Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.

Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not?  A 40% reduction in patent filings sounds all nice-like.

But if we take a look at what Unified Patents says, they tell a different story:

The number of 2014 patent litigation filings approached 5000, the third highest count ever.  Patent suits have risen dramatically since 2010, disproportionately impacting some sectors and technologies.

Say whaaat?  If you go back and look at what Lex’s numbers are reporting, you see that they’re taking Sept 2013 filings compared to Sept 2014 filings and saying “Look y’all, that’s a 40% decrease!!”  If you understand The Mathematics at all (or have a calculator handy), you’ll see that using standard arithmetic, they’re correct.  But while it makes for a good headline that everyone and their uncle likes to repeat, is it giving the whole story?

Just because you have numbers and can graph them doesn’t make what you’re saying true.  If that were the case, then we need to all but insist that Miss America candidates be no more than about 12 years old, lest those hot-vapor murderers kill us all:

badcorrelation

The thing is, it doesn’t even matter.  Whole numbers are nice, but it doesn’t mean that patent trolls haven’t caused unknown damage to small business and large businesses alike.  We all know what ‘they’ say:  There’s lies, damn lies, and statistics.

As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend.  If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?

You can work the numbers to reach any conclusion you want, but it won’t mean there isn’t a problem with rogue companies taking their “patent rights” to the extreme and abusing the system to beat down either the competition or the little guy, who are sometimes one and the same.

To quote one of my favorite Harrison Ford movies:

Sometimes I sing and dance around the house in my underwear. Doesn’t make me Madonna. Never will.

JustSayin_small_New

IPTT

{Jackie Chan confusion image found here.  Spurious correlation graph found here.}

Should IBM’s Watson Be Patent Eligible: An Essay By An Idealogue Without A Clue

Just in case the subtitle isn’t clear, I’ll invite you to review the twitter conversation where Gene said I was not worth arguing with, then proceeded to engage in the conversation with five more tweets.  I’m not sure if he can’t count, or if he just can’t help himself?  The point was, he asked me if I wanted to debate whether IBM’s Watson should be patent eligible and I told him that I was far too wordy to do that on Twitter but that I’d be happy to respond on the blog.

And here we are.

I’m coming at this issue of patentability of Watson and of software in general not as an attorney, not as an engineer, not as a patent agent, nor as a government official.  In fact, other than making good on a Twitter promise, I don’t have a dog in this fight.  I’m just a girl, standing in front of a boy, asking him to love her.  Wait, what?

Notting-H-Julia-Roberts_l

I look exactly like Julia Roberts, only with brown hair,
blue eyes, and much less height.
True story.
(Hint: not really)

I see this issue from a business standpoint, and as someone who has a background in computer programming/software development.  I’ve been doing it for over 20 years now so I think I have more than a passing understanding of what computer software is and does, and how it’s created.  I spent the better part of my 20’s in little hidey holes banging out line after line of code.  It isn’t as if I’m coming completely out of left field here, is my point.

The question of should Watson be patent eligible is moo…IBM does in fact own several patents for the technology behind the service.  So the question is more rhetorical in nature.  Scholars at every level have been tackling this question for in excess of two decades so the idea that I can work this out in a blog post or twitter conversation is hugely unlikely.

Nevertheless, you asked (and so nicely, too!) and I will proffer my answer.

Lines of code or algorithms are not, in and of themselves, useful.  From the US Constitution, Patents are issued:

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.

To promote the “useful arts”, not to promote “really cool code” or “computers that can win Jeopardy”.  No, the intent as I read it was to protect those who spend their time and money developing something new, non-obvious, and useful.  Yet how useful is Microsoft Word if no one ever creates a document with it?  See where I’m going with this?

Using patented technology, IBM is promoting the useful arts.  They’re giving away some of the information that Watson’s powerful computing has generated from an article here :

In a demonstration of its power, Watson has 4.7 million patents and 11 million scientific journals published between 1976 and 2000.  In each article Watson carefully identified any previously unseen chemical compounds (in pictures or text), grabbed any related diagrams, grabbed relevant keywords, and lastly scooped up the author and company names.

The result was a database of 2.5 million compounds, which are thought by Watson to be unique.  For each of these compounds Watson discovered the earliest patentee.  IBM donated its superbot’s work — the “open chemistry” database — to the U.S. National Institute of Health (NIH), allowing scientists all over the world to dig into it.

But again, it isn’t the lines of code or the circuitry or the machine itself that makes Watson useful.  It’s what comes out of it.  This is why I don’t like patent trolls, incidentally.  They don’t make anything, they just buy patents and extort money from people by threatening to sue for infringement even, and especially, when there’s no true evidence that any such infringement took place.  But I digress.

I’ve spent the better part of a week reading all about Alice Corp vs. CLS Bank and the numerous briefs (brilliantly curated here by Dennis Crouch) surrounding it.  I’ve read countless articles about Watson itself (himself?) and this one is the best.  And in all my reading and Googling do you know what I discovered?  This is a multi-layered and complicated question with no clear answer.  Hell, if this statement via Wikipedia is any indication:

The fractured panel of ten judges issued seven different opinions, with no opinion supported by a majority. Seven of the ten judges upheld the district court’s decision that Alice’s method claims and computer-readable-medium claims were not patent-eligible, but they did so for conflicting and incompatible reasons. Five of the ten judges upheld the district court’s decision that Alice’s computer-systems claims were not patent-eligible. The panel did not agree on a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.

then there is not much hope that I can add thoughtfully to the discourse except to say this:  I think figuring out what is patentable and what is not has become so unbelievably complicated because complications mean lawyers who are necessary to decipher what’s going on and we all know that in any dispute, patent or otherwise, the real and clear winner is always the attorney.  They didn’t do it on purpose.  I think complication is a natural offshoot of people who are, by nature of their vocation, extremely risk averse and also?  Happen to bill by the hour.  They spend all their time looking for any loophole to any given statement (either on the loophole creation side or the loophole avoidance side) so they dream up crazy tests and rules and talk their clients into suing each other over them.

suits_charactergallery_harvey_09

Lawyerus billalotus.

But just as an aside, regarding Alice Corp v. CLS Bank, what kind of crazy-making is this, anyway?  Alice Corp creates “a computer-implemented, electronic escrow service for facilitating financial transactions”.  From their own website:

An Alice Market enables end-users and investors to create flexible contracts that meet their hedging and investment needs in a real-time, secure and anonymous electronic market. It also ensures that participants are not exposed to the possible failure of the parties with whom they contract.

Is it possible to “ensure that participants are not exposed to the possible failure of the parties with whom they contract” without an Alice Market?  If what CLS Bank was doing uses the exact same methodology and code that your patented software does, then I suppose you’ve got them on infringement.  It doesn’t seem that hard to me to figure out…CLS is either using your software methodologies and code and algorithms or they aren’t.  As a coder, it’s pretty easy to figure that out so honestly, I don’t get what all the fuss is about in terms of whether or not they’re infringing.  Or maybe I’m stupid and am missing something really obvious, in which case I have zero doubt that Gene someone will let me know.

Either way, this isn’t really what the case is about anymore, it’s about can you patent software?  Nee’, is IBM’s Watson patent-elibible?

My answer?  Like I said on Twitter…code that simply replicates business rules should not be patentable.  But for the broader question of all software in general, I don’t honestly know.

You can bet, though, that I’ll be waiting on the Supreme Court’s answer to the question like some people wait for a shoe sale at Nordstrom’s.

JustSayin_small_New

IPTT

{Image of Julia Roberts’ front and Hugh Grant’s back from Notting Hill found here. Image of Harvey Specter found here.}