What Idiot Wrote The Patent That Might Invalidate Software Patents? Oh, Wait, That Was Me'

We recently wrote about a surprising Federal Circuit (CAFC) ruling that might open the door to invalidating a lot of software patents. We received an an interesting comment on the post a few days later from John Pettitt:

So I was thinking - great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it - then I realized the idiot in question was me :-)

Not sure how I feel about this.

John - inventor of the patent in question.

Pettitt is now running an interesting operation called Free Range Content, which helps companies syndicate content easily. However, a while back, he was the named inventor on patent 6,029,154, describing a "Method and system for detecting fraud in a credit card transaction over the internet." We reached out to Pettitt to ask him a few questions about his views on the patent system and he kindly agreed.

Given his comment, calling it "great" that software patents could be invalidated, we wanted to know if he was completely against software patents. Not surprisingly (and here we agree with him), he notes that the issue is more complex than that:

It's a complex issue. I don't think they are inherently bad, however the loose examination standards and a lack of guidance from the courts let a lot of bad patents through. Patents are meant to protect innovation so they should be held to a high standard. Unfortunately the patent industry relies far too much on patent prior art and ignores the vast corpus of open material. The result is that many patents look stupid on their face to anybody 'skilled in the art.'

This is a good point and one we've raised many times before. So many patents that are issued are ridiculed by people actually skilled in the art, demonstrating how they never should have been issued. But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented.

Given that this was his patent, we wondered if his views towards patents had changed over time, and he noted, not really:

It hasn't change much. I've never been a big fan of the broad swath of business method patents and even less of a fan of the process for creating and litigating patents. That said, it's the world we live in. So, like every other Silicon Valley entrepreneur, I file patents.

This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.

Given that it's his patent and he seemed surprised about it, we wondered if he even knew it was involved in a lawsuit. He noted that he has no relationship with any of the parties any more. While he noted that he knew his patent was involved in a lawsuit somewhere, he didn't know that it had reached the appeals court, which was part of the surprise. We also asked if he ever expected that a patent of his would be central to a key ruling about software patents, and he admitted it never crossed his mind:

No. honestly I expected some of the more extreme software patents to be the test cases.

We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:

This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome. Taking my patent as an example: yes, you could do everything it says in your head. In fact, that’s how I came up with the idea. However for a practical application of the idea you have to implement it in a computer system. Doing it by hand is too slow. This leads to the interesting question: if I build a machine with the code burned into ROM, making it a dedicated tangible device that could only do fraud detection, would that be ok? What about if it produces a tangible result (say printing a fraud warning?). Now if I put the same code on a general purpose computer would that be ok? Compare it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules. As computing becomes pervasive and everything becomes computer controlled or computer mediated it's still important to be able to protect original, non-obvious, ideas.

This is a fair response, and it's one of the key reasons why I've also been hesitant to fully agree with those who wish to carve out software patents. It just seems like something that would be a lot more difficult in practice (though there could be a few ways to do it).

But that doesn't mean the system isn't really, really broken, and Pettitt outlined the details of the problem and a potential solution, from his point of view as an entrepreneur, an inventor and a patent holder:

The problem today is that it's expensive to litigate individual patents and in many cases it's cheaper to pay up than to litigate even if the patent is clearly junk. I think the solution to the software patent issue might include some or all of the following:

• Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity.
• Shorter lifespan for software patents (7-10 years?)
• End the venue shopping for lawsuits and impose meaningful punitive damages for the assertion of claims that clearly don’t apply (similar to anti SLAPP statutes)
• Patents are meant to foster innovation by protecting the inventor and then upon expiry providing a library of information for others to build on. To this end, going forward, if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid.

The "panel of experts" is similar to what I suggested recently in my "how to fix the patent system" post. I also really like some form of extending anti-SLAPP type laws to bogus patent suits. As we've pointed out in the past, it's incredibly difficult to get a totally bogus patent lawsuit dismissed without it first costing you a ridiculous amount of money. Other types of lawsuits are much easier to get dismissed. Why not patents? I also like the idea that weak disclosures should invalidate a patent, since that would kill a bunch of patents, but I do wonder how you put that into practice. If anything, it seems like the kind of thing that should be solved at the beginning -- in that a patent examiner shouldn't approve a patent that doesn't really teach anything. As for shorter terms for "software patents," we're back to how do you define a software vs. hardware patent.

Still, thanks to John for taking the time to talk. We're so constantly told by patent system supporters that only patent holders should be allowed to comment on the patent system (a claim that's complete nonsense, of course), so it's nice to speak to one (of many) who sees many of the current anti-innovation problems of the system.