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Patent Invalidation
There are over 20,000 software patents issued each year, and biotechnology arenas are utilizing more
and more computer technology. This results in a “patenting frenzy” of Internet, biotech, and e-commerce
advances. Although this may not seem startling at first, other factors combine to cause numerous problems
in this area of patents.
The problem starts at the PTO and with the patent examiners. Examiners are not given enough time and
resources to perform adequate background checks on prior art. In addition, the literature searches that
are usually performed on prior patents are not as effective in the software field since recent developments
in software, algorithms, and business methods do not usually show up in the patent system. As a result,
patents that should not be issued in the first place make it past the examiners and are stamped with a seal
of approval.
As a result, these approved patents carry with them a presumption of validity difficult to overcome.
Challengers of these dubious patents face a heavy burden of proof, and a poorly issued patent can threaten
entire industries. For example, British Telecom claimed that it held a patent for hyperlinking on the
Internet. If enforced, this could threaten and retard years of online development. Another patent holder,
Bruce Dickens, claimed to own the patent for the Y2K fix in computers. Again, this single patent holder
posed a threat to hundreds of companies attempting a fix. Lastly, Amazon.com’s “one-click shopping” patent
sparked a debate during a suit against Barnes and Noble.
It is very important to note that these bunk patents appear in an arena characterized by big money. For
example, acquiring a software technology patent from an inventor can cost tens of thousands of dollars.
Patent litigation easily goes upwards of millions of dollars in costs. And patent licensing can garner
hundreds of millions of dollars over the long haul. It is therefore no surprise that so much attention is
being paid to this area of the patent industry.
Software and internet-related patents are not the only ones of concern here - biotechnology patents also
pose a problem. Biotech innovations, including DNA fragment patenting, cloning, pharmaceutical developments,
and stem cell research comprise an area where profits reach the billions of dollars. The intertwining of
biotech and computer research poses the same problems software technology patents face, including enablement
and lack prior art (biotech patents tend to have more enablement problems and fewer prior art problems than
do software patents).
The question remains: what can be done to remedy the current state of affairs regarding patents? One possible
solution is to give patent examiners more time and resource solutions in a “quality over quantity” approach.
This might prove to be difficult due to the overwhelming number of patent applications currently flooding
the PTO. In addition, some online resources exist for potential patent buyers who want to check their
prospective patent’s validity. An archive of invalidated patents is available online at
http://www.iplaw-quality.com/invalid.htm. Another interesting yet currently defunct online solution to
annoying “bad patents” was BountyQuest.com, which placed a “bounty” on annoying lawsuit-provoking patents
with a reward for information leading to their invalidation.
No matter what the eventual remedy may be, the fact remains that overbroad, vague, nonenabling patents are here
to stay for the time being and constitute a threat of suit for many in the software technology and biotech
businesses.
Resources:
Source Translation Optimization
(http://www.bustpatents.com/)
Patent Absurdity, Steven J. Frank
(http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i080502)
A Call for Bounty Hunters, Michael J. Feldon
(http://pubs.acs.org/subscribe/journals/mdd/v04/i03/html/03patents.html)
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