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<title>The Anatomy of a Trivial Patent - GNU project - Free Software Foundation</title> |
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<div class="article reduced-width"> |
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<h2>The Anatomy of a Trivial Patent</h2> |
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|
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<address class="byline">by <a href="https://www.stallman.org/">Richard |
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Stallman</a></address> |
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|
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<p>Programmers are well aware that many of the existing software patents |
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cover laughably obvious ideas. Yet the patent system's defenders often |
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argue that these ideas are nontrivial, obvious only in hindsight. And |
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it is surprisingly difficult to defeat them in debate. Why is that?</p> |
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|
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<p>One reason is that any idea can be made to look complex when |
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analyzed to death. Another reason is that these trivial ideas often look |
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quite complex as described in the patents themselves. The patent |
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system's defenders can point to the complex description and say, |
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“How can anything this complex be obvious?”</p> |
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|
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<p>I will use an example to show you how. Here's claim number one |
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from US patent number 5,963,916, applied for in October 1996:</p> |
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|
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<blockquote> |
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<p>1. A method for enabling a remote user to preview a portion of a |
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pre-recorded music product from a network web site containing |
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pre-selected portions of different pre-recorded music products, using |
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a computer, a computer display and a telecommunications link between |
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the remote user's computer and the network web site, the method |
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comprising the steps of:</p> |
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|
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<ul> |
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<li>a) using the remote user's computer to establish a telecommunications |
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link to the network web site wherein the network web site comprises |
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(i) a central host server coupled to a communications network for |
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retrieving and transmitting the pre-selected portion of the |
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pre-recorded music product upon request by a remote user and (ii) a |
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central storage device for storing pre-selected portions of a |
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plurality of different pre-recorded music products;</li> |
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</ul> |
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|
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<ul> |
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<li>b) transmitting user identification data from the remote user's |
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computer to the central host server thereby allowing the central host |
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server to identify and track the user's progress through the network |
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web site;</li> |
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</ul> |
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|
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<ul> |
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<li>c) choosing at least one pre-selected portion of the pre-recorded |
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music products from the central host server;</li> |
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</ul> |
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|
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<ul> |
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<li>d) receiving the chosen pre-selected portion of the pre-recorded |
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products; and</li> |
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</ul> |
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|
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<ul> |
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<li>e) interactively previewing the received chosen pre-selected portion |
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of the pre-recorded music product.</li> |
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</ul> |
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</blockquote> |
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|
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<p>That sure looks like a complex system, right? Surely it took a real |
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clever guy to think of this? No, but it took cleverness to make it seem |
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so complex. Let's analyze where the complexity comes from:</p> |
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|
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<blockquote> |
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<p>1. A method for enabling a remote user to preview a portion of a |
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pre-recorded music product from a network web site containing |
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pre-selected portions</p> |
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</blockquote> |
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|
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<p>That states the principal part of their idea. They put selections |
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from certain pieces of music on a server so a user can listen to |
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them.</p> |
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|
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<blockquote> |
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<p>of different pre-recorded music products,</p> |
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</blockquote> |
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<p>This emphasizes their server stores selections from more than one |
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piece of music.</p> |
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|
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<p>It is a basic principle of computer science that if a computer can do |
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a thing once, it can do that thing many times, on different data each |
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time. Many patents pretend that applying this principle to a specific |
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case makes an “invention.”</p> |
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|
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<blockquote> |
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<p>using a computer, a computer display and a telecommunications |
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link between the remote user's computer and the network web |
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site,</p> |
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</blockquote> |
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<p>This says they are using a server on a network.</p> |
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<blockquote> |
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<p>the method comprising the steps of:</p> |
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<p>a) using the remote user's computer to establish a telecommunications link to the network web site</p> |
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</blockquote> |
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<p>This says that the user connects to the server over the network. |
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(That's the way one uses a server.)</p> |
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|
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<blockquote> |
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<p>wherein the network web site comprises (i) a central host server |
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coupled to a communications network</p> |
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</blockquote> |
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<p>This informs us that the server is on the net. (That is typical of |
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servers.)</p> |
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|
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<blockquote> |
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<p>for retrieving and transmitting the pre-selected portion of the |
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pre-recorded music product upon request by a remote user</p> |
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</blockquote> |
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<p>This repeats the general idea stated in the first two lines.</p> |
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|
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<blockquote> |
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<p>and (ii) a central storage device for storing pre-selected |
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portions of a plurality of different pre-recorded music |
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products;</p> |
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</blockquote> |
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|
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<p>They have decided to put a hard disk (or equivalent) in their |
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computer and store the music samples on that. Ever since around 1980, |
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this has been the normal way to store anything on a computer for rapid |
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access.</p> |
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|
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<p>Note how they emphasize once again the fact that they can store |
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more than one selection on this disk. Of course, every file system |
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will let you store more than one file.</p> |
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|
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<blockquote> |
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<p>b) transmitting user identification data from the remote |
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user's computer to the central host server thereby allowing the |
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central host server to identify and track the user's progress through |
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the network web site;</p> |
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</blockquote> |
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|
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<p>This says that they keep track of who you are and what you |
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access—a common (though nasty) thing for web servers to do. I |
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believe it was common already in 1996.</p> |
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|
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<blockquote> |
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<p>c) choosing at least one pre-selected portion of the |
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pre-recorded music products from the central host server;</p> |
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</blockquote> |
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|
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<p>In other words, the user clicks to say which link to follow. That |
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is typical for web servers; if they had found another way to do it, |
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that might have been an invention.</p> |
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|
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<blockquote> |
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<p>d) receiving the chosen pre-selected portion of the |
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pre-recorded products; and</p> |
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</blockquote> |
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<p>When you follow a link, your browser reads the contents. This is |
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typical behavior for a web browser.</p> |
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|
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<blockquote> |
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<p>e) interactively previewing the received chosen pre-selected |
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portion of the pre-recorded music product.</p> |
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</blockquote> |
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|
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<p>This says that your browser plays the music for you. (That is what |
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many browsers do, when you follow a link to an audio file.)</p> |
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|
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<p>Now you see how they padded this claim to make it into a complex |
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idea: they combined their own idea (stated in two lines of text) with |
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important aspects of what computers, networks, web servers, and web |
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browsers do. This adds up to the so-called invention |
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for which they received the patent.</p> |
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|
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<p>This example is typical of software patents. Even the occasional |
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patent whose idea is nontrivial has the same sort of added |
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complication.</p> |
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|
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<p>Now look at a subsequent claim:</p> |
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<blockquote> |
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<p>3. The method of claim 1 wherein the central memory device |
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comprises a plurality of compact disc-read only memory |
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(CD-ROMs).</p> |
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</blockquote> |
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|
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<p>What they are saying here is, “Even if you don't think that |
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claim 1 is really an invention, using CD-ROMs to store the data makes |
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it an invention for sure. An average system designer would never have |
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thought of storing data on a CD.”</p> |
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<p>Now look at the next claim:</p> |
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<blockquote> |
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<p>4. The method of claim 1 wherein the central memory device |
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comprises a RAID array drive.</p> |
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</blockquote> |
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<p>A RAID array is a group of disks set up to work like one big disk, |
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with the special feature that, even if one of the disks in the array |
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has a failure and stops working, all the data are still available on |
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the other disks in the group. Such arrays have been commercially |
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available since long before 1996, and are a standard way of storing |
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data for high availability. But these brilliant inventors have |
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patented the use of a RAID array for this particular purpose.</p> |
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<p>Trivial as it is, this patent would not necessarily be found |
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legally invalid if there is a lawsuit about it. Not only the US |
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Patent Office but the courts as well tend to apply a very low standard |
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when judging whether a patent is “unobvious.” This patent |
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might pass muster, according to them.</p> |
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|
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<p>What's more, the courts are reluctant to overrule the Patent |
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Office, so there is a better chance of getting a patent overturned if |
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you can show a court prior art that the Patent Office did not |
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consider. If the courts are willing to entertain a higher standard in |
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judging unobviousness, it helps to save the prior art for them. Thus, |
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the proposals to “make the system work better” by |
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providing the Patent Office with a better database of prior art could |
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instead make things worse.</p> |
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|
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<p>It is very hard to make a patent system behave reasonably; it is a |
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complex bureaucracy and tends to follow its structural imperatives |
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regardless of what it is “supposed” to do. The only |
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practical way to get rid of the many obvious patents on software |
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features and business practices is to get rid of all patents in those |
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fields. Fortunately, that would be no loss: the unobvious patents in |
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the software field do no good either. What software patents do is put |
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software developers and users under threat.</p> |
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|
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<p>The patent system is supposed, intended, to promote progress, and those who |
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benefit from software patents ask us to believe without question that they do |
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have that effect. But programmers' experience shows otherwise. New theoretical |
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analysis shows that this is no paradox. (See <a |
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href="https://web.archive.org/web/20000815064858/http://www.researchoninnovation.org/patent.pdf">researchoninnovation.org/patent.pdf</a> |
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on web.archive.org.) There is no reason why society should expose software |
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developers and users to the danger of software patents.</p> |
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