Thursday, November 19, 2009

Appetisers, prior art and patents

Over the last year I’ve read many articles about how software patents are bad and evil and whatnot. Most of them give an example of a big evil company (often Microsoft) applying for some obvious patent and them laughing their heads about how incredibly stupid the whole thing is.

The problem is that most of these people do not understand how legal documents work. They read the brief and think, oh, wow, I could have thought of that!

BTW: I am not a lawyer and this doesn’t constitute as legal advice.

The brief is not the whole document

Briefs are not meant to cover the entire claim. That’s what the patent claim does. Instead, the brief just gives a short, general idea of the claim. Patents are not accepted, rejected or prosecuted on based on the brief.

Think of the brief as the appetiser in a meal. If all you have is an appetiser, you’re not going to get very full.

In other words, a brief is just that, brief.

Patents are all about implementation

If the patent applicant finds a novel way of doing something commonplace, they can still apply for a patent. Prior art doesn’t work if the methodology is completely different; likewise, you can’t sue someone if the method they used was completely different.

In other words, just because the idea is obvious doesn’t mean the method is also obvious.

If it’s mentioned in the patent, chances are it’s different

If you see the prior art you were thinking of acknowledged or mentioned in the patent, then that usually means that the applicant recognises that that art does something functionally related to the patent, however they still think that it’s different enough to warrant a patent.

To name one that has recently popped up in the geek news: In patent 7,617,530 (Rights elevator), the applicants specifically mention sudo as a prior art for process escalation, however consider the patent to be different.

Consider the patent in full

Finding prior art for some of the patent does not invalidate the entire thing. If it did, we could stop someone getting a patent for a tire engineered to grip tighter on pavements using a specific method with “prior art: tire.”

Conversely, just because someone got a patent on a tire engineered to grip tighter on pavements using a specific method does not mean someone just patented a tire. Patents cover the entire implementation; one can’t be sued for just making a tire using this patent.

Legal language is not English

Patents are not written so that normal people can understand them; they’re written so that lawyers can understand them. Think of programming in BASIC – the language is based on English, but is extremely strict, and someone may find it confusing if they have no prior training. Similarly, legal language may be confusing to those not doctrined to the strict meaning of words in legal language.

Above all, READ THE PATENT IN FULL. Do not EVER go on just the brief alone. Seriously. It can save you a lot of trouble, and stop you from looking reeeally stupid.

Hope this clears up some confusion!