My Patent Article on Gamasutra
I wrote this editorial for gamasutra.com about software patents. I'll put it up as a feature article here after a while, but I think gamasutra likes to have an "exclusive" for a while. ;)
--Sirlin
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February 28th, 2007 at 5:16 am
Oh Sirlin. I respect you so much, why do you have to be a patent basher? =(
I’m a patent attorney, and my opinions are obviously skewed because of my desire to keep a job. Some of what you say in the article is true, but some of it is melarchy. I am sick of seeing the amazon buy it now case cited as an example of how the system is fubar. The funny thing is, one click shopping was not around before that patent. Everyone talks about it as if it were completely obvious. If it was so obvious, why wasn’t it implmemented?
“Neither is it served by Namco’s patent 5,718,632, giving it a twenty-year government-sanctioned monopoly on using mini-games during another game’s loading screen. I don’t know how else to say this, but the idea of putting a mini-game in a loading screen is ‘obviously obvious.’”
This paragraph from the article irks me. This patent was filed in 1995. It could have been invented years before that. You can’t just say it is “obviously obvious” you need to have some sort of evidence that that is the case. What is an examiner going to tell me, as a patent attorney, I’m sorry sir that is “obivously obvious” so I’m denying your patent application. No. They have to provide me with hard evidence of something that proves it already exists, or they have to provide me with hard evidence that it would be obvious to modify something that did exist.
More later.
February 28th, 2007 at 6:14 am
Mini-games in a loading screen are obviously obvious. I don’t know how else to say it. There are a lot of ideas that have not yet been implemented in very new fields and patents are not even *supposed* to cover all of those. Once that field becomes explored by inventors, lots of obvious ideas will naturally be invented without any need for patents. Patents are supposed to help the non-obvious, difficult to develop ideas along, ideas that may very well not be invented unless the inventor can reap the benefits of a patent.
The idea of mini-games in a loading screen is dead obvious and is (or would be? or was?) a natural occurance, once games had lots of loading times. Without patents, this idea would *certainly* have occurred. Patents on something like that are entirely counter-productive. Take an invention that was obvious and practically inevitable, and prevent others from using it.
Perhaps your point is that there was no body of written evidence at the time of the filing of 5,718,632 that would demonstrate the idea is obvious. You are probably right, but that only goes to show that that is the wrong criteria. I, as a member of the game industry, am telling you that it’s an obvious idea that doesn’t need any protections to come about naturally, so any criteria you use MUST give that result or else it’s a flawed criteria. Before games were on CD, there was not much need for this idea. The idea itself is so pedestrian that even once it did become relavent, no one is going to write an article on it (why would they?), so of course you won’t find much written evidence about it.
I’m still kind of shock that *anyone*, even a patent lawyer, could think that innovation is served by patenting a game that takes place during the loading screen of another game. Is that really your position?
–Sirlin
February 28th, 2007 at 7:07 am
“Hard evidence that it would be obvious” is no more meaningful than “obviously obvious” except possibly putting the onus of effort on the people challenging the patent rather than those making the claim … in a system where every single incentive is already pointing towards the granting of every patent that comes down the pipe (it makes the patent office more money; it takes less work; it makes, well, patent lawyers more money; and so on).
Patents are ultra-cheap 20 year monopolies. They shouldn’t be handed out like candy.
Re: “This paragraph from the article irks me. This patent was filed in 1995. It could have been invented years before that.”
That’s because it was. In 1984. http://en.wikipedia.org/wiki/Loading_screen . (Yes, I know it’s wikipedia. But I doubt it’s wrong about Skyline Attack, or the other games (Mega-CD games) that it reports having loading screen minigames before 1995.). But of course, that’s Prior Art, not non-obviousness.
The thing I keep seeing quoted about the obviousness test is along the lines of
“provision of federal patent law that dates to 1952, which stipulates that an invention is not eligible for a patent if a “person having ordinary skill in the art” would consider it “obvious.”"
Minigames on the loading screen are - in the words of the “person having ordinary skill in the art [of game design]” that wrote the article - obvious.
Furthermore, games don’t *need* patent protection. Copyright gives your game protection against copying; Patent protection would undoubtedly simply stifle innovation - imagine someone patented “fighting games”.
February 28th, 2007 at 7:22 am
As a note, I meant the fighting games comment in reference to the Crazy Taxi patent - looking over it (http://patft.uspto.gov/netacgi/nph-Parser?u=%2Fnetahtml%2Fsrchnum.htm&Sect1=PTO1&Sect2=HITOFF&p=1&r=1&l=50&f=G&d=PALL&s1=6200138.PN.&OS=PN/6200138&RS=PN/6200138) you could probably actually keep most of the patent the same to apply to virtually any game or genre.
February 28th, 2007 at 7:25 am
There is a first time for *everything.* A first time for one-click shopping, a first time for auctions over the internet, a first time for minigames during loading. That doesn’t make those innovative or worthy of patent.
Being new doesn’t mean something is non-obvious.
The point of patents, as Sirlin points out, is to *help* innovation. Make it worthwhile for people to spend time, effort and money on novel projects. Not every good idea should be patentable.
If Amazon hadn’t been first with one-click shopping someone else would have been shortly thereafter. It saves your information! WOW! Saving customer information in a back-end database is commonplace, and one-click shopping is a minor extension of that.
What next? Using a cookie to remember login information? I’m sure *some* site had to be first there right?
“Does this thing already exist?” is a horrible test because at some point the answer is no for every single item on earth.
February 28th, 2007 at 7:26 am
By the way Sirlin, respond to my other post about CCG sales models! What sales model do you advocate over random blister-packs?
February 28th, 2007 at 9:58 am
I’m gonna have to disagree with you, Sirlin. When doing an obviousness analysis, you can’t use hindsight; you’re gonna have to think of the invention at the time it was filed (1995). Otherwise, everything looks obvious with twelve years worth of hindsight.
What was the technology like in 1995? IIRC, the Sony PS1 had just came out, and CD technology was still relatively new. Loading screen were long because it took a lot of processing power to load the games. I don’t think *any* computer programmer at 1995 would have told you that it would’ve been trivially easy to put mini games into loading screens because 1) it was already computationally expensive given the current state of the technology and 2) even if you could devise some sort of non ugly fork function to simultaneously execute while the loading screen was there, it would extend the loading time to something that would most likely not be acceptable to the end user. That’s why, like Jimb0v says, we require hard evidence. Either we have a bunch of patents we can combine that would be the same thing and some motivation to combine the references, or a bunch of published references prior to 1995 that would indicate that the person of ordinary skill in the art would’ve considered it a trivial matter. If you read the description of that patent, it indicated that the best people could do was play background music. So, from 1995, it would seem pretty darn novel and unobvious to me.
But hell, if you think you can invalidate it, theres always Ex Parte Reexamination. You as a third party can submit prior art annonymously and take a pot shot at it! Maybe the patent office will be convinced by your prior art, maybe they won’t, but there’s your peer review process right there. Granted, it’s not as good as Europe’s opposition system, but it’s something. Just make sure your references predate 1995.
February 28th, 2007 at 10:32 am
You’re missing the point. Patents aren’t (supposed to be) for “I THOUGHT OF IT FIRST ITS MINE HANDS OFF HAHAHAHAHA”-ness. Anyone who believes there would be any merit to such a system is a retard who hates advancement.
Patents are SUPPOSED to be for situations like say… Making a car that runs on water. You dump tons in R&D … tons in testing, development and production. Tons of work to invent and craft this idea… But then you realize you don’t want to because everyone will just rip you off and you just wasted all that money. With patents, you get first dibs.
…. So yeah. SOMEONE had the thought to come up with mini-games during load screens. Now, it’s highly probable that such things existed prior, but even if they didn’t, it’s not an idea that would be hindered by the thought of getting ripped off.
What, you think the guy who came up with the patent was like “.. Man… but if I do that, all this time will of been wasted! Everyone will rip me off and I’ll have nothing!” …? Please tell me you don’t think that.
February 28th, 2007 at 10:38 am
I didn’t even knew the mechanism that I described as an interaction design pattern had been patented. http://www.eelke.com/pre%20loader%20game.html Does this pattern also cover install screens?
February 28th, 2007 at 7:04 pm
Hi Sirlin
You should really take a look at the way European contries (including Denmark where I live) tacles the problem of protecting interlectual rights in software. To say it short, there are no patents on software, only copyright. Basically it means that its impossible to get a “government monopoly” on ideas, only on implementation. That really solves the problem you mention with different solutions to the same problem. In Denmark court practice is that if you make something (software, art, litterature whaterver) thats obviously a copy of another work, then you are violating their copyright, but as long as you are only copying the idea (say yet another car game in a town) you are free to do so.
Software patents are bad! I dont hope american lobyists will have luck to introduce them in europe.
March 1st, 2007 at 1:02 am
Yumi Saotome, in regards to the patent on loading mini-games, I want to point out that Sirlin isn’t using hindsight. He’s using intuition. The intuition he’s using was just as valid in 1995 as it is today. You said so yourself. Loading times were long back then. But you swerve off the track when you say “I don’t think *any* computer programmer at 1995 would have told you that it would’ve been trivially easy to put mini games into loading screens”. Ease of implementation is not an issue. The issue is how obvious the idea is. And I think it’s SO obvious that even someone with NO SKILL AT ALL in the field (of game design) could’ve come up with it. In laymen’s terms, the idea boils down to “Wouldn’t it be cool to give the player something to do while he waits after the loading?” All you really need for that idea to be obvious to you is to have been frustrated by long loading times often enough.
March 1st, 2007 at 1:17 am
I have been under the impression that you can not patent an idea, just a specific way of achieving an idea’s manifestation. The problem there is: even that process is a string of ideas. So I guess it is a slippery slope; the line between good idea and good invention is determined by someone’s subjective discernment.
At any rate, I agree that there is need to reward someone for a good idea, ideas are a dime a dozen. Protecting a specific expression of a good idea via copyright or specific, non-obvious, architecture by short term patents.
It seems like ultimately a good thing that many different companies are allowed to create their take on a motor, a micro-processor, a lightbulb - let them distinguish themselves in the market place by quality, implementation, brand image, and first to market-ness, not by monopolization.
March 1st, 2007 at 1:19 am
edit:
…short term patents, seems reasonable.
March 1st, 2007 at 2:48 am
The attitude many gamers have towards games “ripping off ideas” really irritates me. In most fields of science and art, advances are made by various artists or researchers building upon each others ideas. In videogames, this is not only not practiced, it is actively frowned on.
Look at WoWs quest system for example. Now Im not a WoW fan, but it’s quest system was a good idea. Give the player a trivial objective to switch up gameplay, and alert them as to who they need to talk to via the ! and ? icons. This has been used in other games, and many people moan that they are ‘copying’ WoW. Well guess what, they are. And thats a good thing. If only WoW had copied the MMOs before it and included more of their great ideas (races that matter, player houses, rewards for grouping, ect.).
Gears of War and Supreme Commander both introduced some genre defining innovations in the last month. I really hope that in the future we see more shooters with cover, and more rtses with strategic zoom. I hope players will begin to realize that copying good ideas is a good thing.
I would also like to point out that in video games, patents are totally unnececary. Games are naturally rewarded for being the first to create a concept by being the first game to come out using that concept. We won’t see games with cover systems or strategic zooms for a while simply because of the naturally long development cycles of games. All devs need to reap some profit off innovation is to keep quiet until near release.
March 1st, 2007 at 4:12 am
Rock Joe: No, that kind of “intuition” cannot be used either. If you can use that kind of logic then you could say that no further silicon processors need to be patented because all one has to do is make the transistors smaller or increase their number since it’s so intuitively obvious and who cares about the problems in actually doing it.
If it was so obvious, somebody would’ve done it in the time when loading screens existed (1984) to the time of patent (1995). How come the best that people could do before Namco was background music? Failure of others is a pretty darn good indication of non-obviousness; as they say, the devil is in the details.
Furthermore, they aren’t patenting the idea, they have a patent on a specific implentation on doing it. If you read their patent claims, the mini game must be in the game medium itself, the mini program must be executed BEFORE the main disc code and the mini game code must contain instructions to run as a fork function. You can probably think of many different ways to come up with mini-games in loading screens that don’t use the same solution.
March 1st, 2007 at 4:44 am
Yumi : The 1984 was the date for the loading screen minigame, not the loading screen. People did do them before Namco. (It mentions Sega MegaCD games having loading screen minigames as well; they were pre-PS1 too).
March 1st, 2007 at 5:34 am
To add to what stretch pointed out. The rest of your claims are pretty bogus, as well, yumi.
Quote:
“Furthermore, they aren’t patenting the idea, they have a patent on a specific implentation on doing it. If you read their patent claims, the mini game must be in the game medium itself, the mini program must be executed BEFORE the main disc code and the mini game code must contain instructions to run as a fork function. You can probably think of many different ways to come up with mini-games in loading screens that don’t use the same solution.”
So, translated into english… 1. The code for the mini-game has to be on the same CD as the code for the larger game it’s attached to… so, completely unavoidable. 2. The mini-game (which takes place while the other game is *still loading*) has to begin execution before the larger game *which still hasn’t been loaded yet*… completely unavoidable. 3. A game has to begin from a fork function… note that a fork is how most operating systems begin program execution. It’s how the PS1, in this case, would start up the code from your game… so, almost completely unavoidable (this one I might need to double check the wording in the patent, and exact PS1 specifications to be 100% certain you couldn’t get around it, which I’m too lazy to do, but I’m 90% certain right now, and it would certainly fit any obviousness test).
The short version however, is that that’s not a specific implementation, that’s a list of required actions based on PS1 hardware to make a mini-game possible in the first place. Add to that, that I think anyone who actually does work as a programmer, as Sirlin pointed out, could tell you that the implementation really was fairly trivial, even back in ‘95. Of course, that becomes a moot point, since it’s been pointed out that it was first done long before then.
March 1st, 2007 at 5:40 am
I’ll make this quick. Your comparison to silicon processors seems moot to me because processors are hardware, whereas a loading mini-game is software. Hardware = nuts & bolts. Software = concepts & ideas.
And even if they pattented the implementation instead of the idea, that’s still a bad thing because, as was mentionned in the article, the very THREAT of defending against a patent is enough to discourage most people from even venturing into different implementations of the same idea.
March 1st, 2007 at 6:06 am
There is a distinction between stating an idea and disclosing how to implement the idea. You can only get a patent if you 1) enable one skilled in the art to make the invention; and 2) disclose the inventor’s best mode of the invention. I think the level of detail required is being missed.
Even if a piece of prior art stated: “We could put minigames on the load screen!”, that certainly is not enough to stop someone from getting a patent. Because it doesn’t explain how to do it.
Yumi Saotome makes some great points about the problems with technical implementation of such a feature back in 1995.
I can appreciate that Sirlin and others think this was obvious back in 1995. And to a certain extent you are all right that the criteria is actually what someone skilled in the art thought was obvious back in 1995. The problem is that practically speaking when the patent is going through examination we will never have access to that magical person. Thats why for the most part the examiners are forced to rely on documentation. Don’t get me wrong I’ve had examiners tell me something is obvious based on their own experience. The problem is that when you say something is an obvious combination, say for example an examiner provided a document showing a loading screen, but then relied on his knowledge stating that you can create minigames therefore it would be obvious to have a minigame during the load screen. This can be easily refuted in current patent law by stating that there is no motivation to combine these two references. Motivation to combine is a very hot topic in the Supreme court right now, and there is expected to be a ruling on it soon that may change the face of patent law. But the point is, under current law, the onus is on the examiner to provide some evidence that a person of skill in the art would think to combine two references. That motivation could even come from a third reference.
The bottom line point I think is just that while in a perfect world a lot of patents would not make it through the office, but I don’t see a way to seperate out obvious from non-obvious without using documents. The problem stems from practicality not because people necessarily disagree with you.
March 1st, 2007 at 6:13 am
I find it a tad bit humorous about this 1984 reference too. I mean this is a perfect example of something where if that holds water then the patent may very well not be enforceable. If the patent office doesn’t have that information in front of them theres nothing they can do.
As for the distinction between hardware and software, I think its pretty silly. Many foreign countries agree with you, but I just don’t see a distinction. I can program anything in hardware or software these days. The lines are so blurred. Just because I arrange a bunch of and and or gates instead of write some code, what is the difference?
Methods have been patentable since the beginning of the system, they are no different than software. I jus don’t see how anyone can make a meaningful distinction.
March 1st, 2007 at 6:24 am
Slashdot has a thread about the broken patent office today:
http://yro.slashdot.org/article.pl?sid=07/02/28/1931222
A few responses explain that the patent office measures productivity in terms of number of patents issued per week. Doesn’t sound like it’s working as originally intended.
March 1st, 2007 at 7:22 am
It seems those defending the patents are missing the point of the article. It’s not whether the patents can be overturned or not; it’s that the whole patent process is currently absurd. The fact that we can have a legal argument about whether the ‘minigame in loading screen’ patent is valid is proof that the U.S. patent system is stupid and needs to be fixed.
March 1st, 2007 at 7:49 am
Just to get back on the same page, I completely agree with what you said there jimb0v, despite my earlier comments. As Sirlin originally mentioned, it’s sort of a given that most of the patents we discussed here might be a bit silly. But, I certainly wasn’t trying to imply it should have been denied at the time. Without being in some magical world where everyone has access to the kind of information here, I think the examiner was correct to let the 1-click buy and mini-game patents through.
The problem is merely that many of us, clearly, feel that patent law should be changed. Perhaps to prevent some of these more silly patents from existing, or at least to make it less onerous of a proposition to challenge them.
March 1st, 2007 at 10:09 am
JimboV:
One could argue the use of a computer has a transformative effect (or whatever legal language is appropriate; it makes a difference, in short). Yes, process is patentable (35 U.S.C. 101) but it’s not copyrightable (17 U.S.C. 102(b)) so I think having one but not the other apply is far more sensible than our current arrangement. (Aren’t business methods patentable but not copyrightable, for example?) IANAL, though, this is just my understanding of the current law.
Of course the loading screen patent is, from a legal perspective, unenforceable due to the Prior Art, let alone the obviousness test. This does not mean the system is fine.
The first problem I have with the patent system is the check before granting is effectively null.
Prior Art is of course easy to miss; and you are placing so much force of evidence required to meet the obviousness test that it’s effectively pointless, since being obvious, the large amounts of evidence you want won’t be there. How exactly is giving someone something to do while waiting non-obvious as a motivation for combining mini-games and loading screens? Do I have to cite magazines in Doctor’s Offices? What exactly do you want? Your requirements would seem to make Method for Exercising a Cat (5443036) non-obvious.
Further, apart from the ludicrous requirements placed on patent examiners to actually reject a patent, there is no motivation for anyone in the system not to grant a patent. Accepting every patent that comes your way as a patent officer makes things easier and makes you more money; and the lack of any drawback of filing an unenforceable patent - combined with relatively minimal costs - means there’s no drawback in grabbing as many as you can.
As a result - especially with overworked examiners - every incentive in the system is geared towards granting everything under the sun as fast as possible. Note that I’m not saying people involved in the system are bad people; just that it’s a horrible system.
The second problem is once a patent is granted - generally regardless of if it’s valid - the validity of the patent is largely irrelevant to whoever gets sued, except in how much you pay.
If someone claims you violated a patent, you have two choices:
a) Do what they say (pay up or whatever)
b) Take them to court.
If the patent is actually valid, you can’t win by taking it to court.
If the patent is invalid - court is *expensive*. As long as they’re asking a non-ridiculous amount of money (Note: “Non-ridiculous” can be over a million dollars) it is in the best interest of the party being sued to just settle. (See: Crazy Taxi Patent).
As a result many invalid patents are never going to get challenged but still make the patenter money; and every incentive is again to patent as many things as possible without regard to whether or not they’re actually valid or not.
So again, the ideal of the system is to promote innovation by giving protection to innovations. However, the way the system is designed its current purpose is to get as many active patents as possible.
We need to change the incentives around:
1) Check patents instead of approving as many as possible:
a) Don’t pay the patent office per patent granted.
b) Make checking prior art easier. Prior art databases and publicly viewable patent applications are good resources on this, but without (a) there’s little motivation to work with them, and they need some time to develop.
c) Reshape the obviousness test a little. I don’t have good ideas on this one, but it needs some sort of work.
d) Get a network of skilled people in various fields that can be consulted on new apps, in regards to obviousness issues. Pay them, if necessary.
2) Patent review that’s cheaper than paying people off; perhaps some sort of panel system?
As a note on the implementation side of patents -
“There is a distinction between stating an idea and disclosing how to implement the idea. You can only get a patent if you 1) enable one skilled in the art to make the invention; and 2) disclose the inventor’s best mode of the invention. I think the level of detail required is being missed.”
That’s because it’s become largely irrelevant. Note the 1-click patent - you defend it on the grounds of “The funny thing is, one click shopping was not around before that patent. Everyone talks about it as if it were completely obvious. If it was so obvious, why wasn’t it implemented?”
a) You’re defending it on the grounds that no-one thought of the idea, not the implementation.
b) The implementation for it is beyond trivial - check a session, if logged in do two database queries. That’s it.
The level of detail required for 1-click for a person reasonably skilled in the art IS the idea, and a lot of patents go no further than that in order to be as broad as possible.
March 2nd, 2007 at 12:31 am
stretch you make some good points, especially about the one-click patent. I’ll have to think about that.
One thing I want to mention though is that the U.S. patent office is actually pretty good at “checking” the patent. Many countries just have a registration system where they don’t even review the substance of the patent. Examiners get “points” for denying an application too, so its not like they only get points for granting. AFter an examiner has denied your application twice you have to basically pay a fee to refile it all over agian.
March 2nd, 2007 at 6:38 am
My two cents…
Patenting user interaction processes is not a healthy use of patent laws. It’s like patenting the process of “turning a steering wheel to the right”. All this does is force everybody to make 3 left-turns… or pay a ludicrous amount of money to perform an action so natural that it’s almost criminal that you have to pay money to do so.
Patents are useful when they allow for alternative designs that perform the same function. However, videogame patents like to protect “idea” of the function… which is absolutely ludicrous. Imagine if that philosophy existed in the real world. You wouldn’t have numerous water purification patents… you’d have one company with a patent on the idea of water purification and no ability to purify the water without paying the patent owners. And to make things worse, they don’t even have a patent on any specific technology, you still have to build a water filtration system yourself.
Seriously, the huge amount of videogame patents that exist are purely because the patent offices are uneducated when it comes to shiny things that beep.
March 2nd, 2007 at 9:03 am
I found this article, which seems relevant to the discussion. Maybe one of the patent lawyers here can comment on its validity:
http://www.nytimes.com/2007/02/13/opinion/13crichton.html?ex=1329109200&en=2e30337139d379a2&ei=5124&partner=facebook&exprod=facebook
The gist is that 20% of the human genome is privately owned and patented, and can’t be used in any scientific study without the patent-owners permission. I’m not sure how closely that mimics software patents, but it seems equally ridiculous to me.
The key difference between the lightbulb and the minigame-loading screen is that the lightbulb required significant research, development, and ingenuity. Even if someone creates a truly original feature, that doesn’t mean it should be worthy of a patent right off the bat. If the feature was a small part of a larger product and didn’t take a lot of research, it seems to promote better products if you just let others copy the feature.
Remember, better products is the ultimate goal of patent laws, not just giving money to the people who innovate the most. The money patent-owners recieve is an incentive to innovate further. When patents reach the point where they’re stifling rather than promoting innovation, it’s obvious things have gone too far.
March 3rd, 2007 at 12:03 am
Echolocating: They are called blocking patents and they exist almost in all disciplines. Even in water purification. Its just that the original braod blocking aptents have long since expired, so now what you see is a litiny of improvement patents.
Video games are relatively new. When an industry is in its infancy you will see more blocking patents, but then as time passes there are no more blocking patents because the broad concepts have been disclosed. I completely disagree with your assertion about patent office examiners. Of the many examiners I have spoken to in my short career, I cannot verify your notion that they are just “uneducated”. In fact it has been just the opposite, they are very educated but often times even though the examiner has a feeling something is out there they don’t have the time necessary to find it.
I don’t know this for certain, but im guessing if you go back far enough you will find a blocking patent in the water filtration art. Further, understand that just because a blocking patent exists that doesn’t mean you can’t patent improvements. It just means in order to practice that improvement you need a license from the blocking patent.
March 3rd, 2007 at 12:09 am
Squidget, who is going to bring to market small improvements if they know they are just going to be copied? Better products is the goal, and I still believe the patent system is serving this goal.
I don’t know much about how the lightbulb was discovered, but I’m going to go out on a limb though and say that not all inventions require a massive amooutn of R&D. How do you draw a distinction based on how much time you spend? I think people here make a lot of good points about what the criteia in a utopia would be, but realistically we can’t base whether we give someone a patent on how much they spent on R&D can we?
Also, if you don’t give imporvements the ability to be patented why would a retailer bring that idea to market? Once something is done, if another company can just copy it they can usually do it cheaper and faster meaning they can undercut the first to market’s price.
Are you really providing a better product by allowing people to copy then? Aren’t inventor’s going to get frustrated because they can’t get investors to buy into their ideas because the investor will say our competitor is just going to copy this new feature, so instead we will just build on what we already have, and not take any risks.
I agree there is a balance to be struct, I just don’t think its “obvious things have gone too far”.
March 3rd, 2007 at 12:55 am
JimbOv, the patent system is not currently serving its goal. If there were no patent system at all, the likelihood of us having mini-games during loading screens is apprximately 100%. The chances of us having websites that let you 1-click buy is also about 100%. Yet now, you are not going to see a cool new mini-game from me during a loading screen because I’d have to get involved in paying the mafia protection money to even try it.
I’m having trouble seeing how a person could disagree with that, or which part they would disagree with. In these two cases, innovation is being hampered. I suppose the part you’d disagree with is that these inventions would have occurred anyway. Common sense seems to indicate they would have been invented though. If the patent system says otherwise, then it is failing to apply the criteria “obvious to a person of ordinary skill working in the field at the time.” You’re going to look rather silly trying to say these things wouldn’t be invented anyway, given the prior art (and damn obviousness!) of mini-games and the real-world equivalent of 1-click buy (”put it on my tab”).
I also wonder if you think the patent system was broken back when it issued 10,000 patents per 46 years rather than 10,000 patents per 3 weeks. Is it cutting to close to home to imagine changes in patent law that would only allow about 10% of the patents we issue these days? I guess I’m getting ahead of myself though, because you can’t agree to slashing away 90% of patents unless you first agree that patents such as 1-click buy and mini-games in loading screens are doing exactly the opposite of what Thomas Jefferson intended.
–Sirlin
March 3rd, 2007 at 1:39 am
Sirlin,
When I discovered software patenting was an issue, I wondered why we were patenting software. I don’t care how innovative it is, it is written. Software should be copyright, because it is a much more objective way to test if it was plagarized.
Software patents don’t fit into Thomas Jeffersons view because software isn’t a material thing nor is it a new art. The microprocessor was the new art. It also isn’t a significant improvement on any existing art. I’m pretty sure by “art” he wasn’t talking about works of art, but rather the creation of a new thing of significance.
With the current patent test, novel non-obvious, and useful, software fails the “novel” category everytime. I say this because software is always the same thing, a sequence of executable instructions. Software is this way because the hardware is unique as to what it does.
Since my first problem is with software patents not being real patents at all, just copyrightable stuff, my second problem with a lot of patents (like those examples in your article) is that they they don’t literally describe something specific. The fail the “Useful” and “Novel” tests. Something can only be “novel” if it is a specific thing. If I said “a marshmallow shaped like an animal,” that’s not novel, that’s just some abstract concept that isn’t real and may not even be possible.
My third problem is with patents of actual items, and is the reason you shouldn’t patent nebulous concepts. That problem is vaporware. And I mean real, solid objects that are proposed to the patent office and never made by the patent holder. Why? Because it doesn’t foster innovation, it stifles it. A person or company who files a patent should be required to physically make a prototype within, say, 2 years. After that, the patent should be sold via auction and paid to the inventor, minus the cost of the patent application. A patent for something that isn’t made is useless and despite the innovation, the inventor doesn’t deserve to hold it like a ransom.
I know the patent attorney comment mentioned that was his career, but these non-patents are intended to steal from the actual inventors. If they did a better job of patents, the remaining infringement suits would be bigger and demand more money in settlement. They’d also be easier to determine. The job of patent attorney will always be lucrative.
March 3rd, 2007 at 5:36 am
The responses are really disheartening. The article is just illustrating that patent reform is needed. Arguing about loading screen mini-games being obvious in 1995 proves that’s true.
However, Jimbov’s first point still stands, I doubt Jefferson ever intended for legal minds to do nothing but debate the finer points of exploiting the current patent system.
Unfortunately for you guys, I just applied for a patent on the concept of patent reform. Suck it Denmark, with your more reasonable system. Nothing’s changing here for 20 years!
March 3rd, 2007 at 2:20 pm
Technical patents are a big problem because you can gussy up a simple idea in technical terms that obfuscate the simplicity.
Take the mini-game example. It has to be on the same disc, it has to use some sort of forked execution to run asynchronously…to an engineer these are simple givens. They aren’t real technical details any more than that a steam engine is going to use some metal in it.
You can find a lot of patents that take existing concepts and simply move them onto a computer or the internet. Humans have run auctions for centuries - running one over the internet is no different than running one over the phone or in person. It is the same mechanism and the only difference is in minor technical details.
It has a web front-end and a database - wow! Totally obvious.
Hey, I’ve got an idea - you can pay bills, only online! You can buy dog food, only online! You can look up your credit history, only online!
People can and do take ideas like that, add in some mumbo-jumbo about databases and sessions and get a patent.
How about the Grolier multi-media patent? They patented text, sound, images and video together!
You know - because no one ever thought of using text, sound, images and video together. “Movies”? What are those?
March 3rd, 2007 at 5:21 pm
Jimb0v: I totally understand your “invested interest” in patents, but it’s okay to admit that there are too many frivolous patents out there. We won’t think less of you. ;-)
Also, do you honestly believe that the people at patent offices actually understand and appreciate the fundamentals of software engineering and human interface design? It honestly looks like a bunch of people trying to check off a simple list of criteria (that’s completely up to interpretation) and trying to process as much of it as possible. It’s mostly a cash cow and it’s painfully “obvious”.
James M: I completely agree with you… and Sirlin as well, of course.
—–
Here’s a good link to ridiculous Microsoft patents… http://www.cs.unimaas.nl/p.spronck/RidiculousPatents.htm
“I assume a complete lack of rationality and critical insight on the part of the patent office administrators has been the cause that Microsoft now can sue anyone who includes in his or her software file packages, a game scoring system, a database, popup notes and/or an easy installation method.”
Hmmm… I’m not the only one who thinks that the patent offices lack of expertise in certain fields is creating mediocre product that’s two decades behind where it could be. ;-)
March 4th, 2007 at 1:40 pm
I honestly don’t believe it is the patent office’s lack of experience, I truly believe the biggest problem is lack of documentation. People should give more credit to examiner’s in general, but their hands are tied usually to finding good references, which in the sofware field is very difficult.
March 4th, 2007 at 2:11 pm
Jimb0v: By saying that it’s not the fault of the examiners, but a “lack of documentation”… you’re conceding that there is a serious flaw in the patenting system. Thank you, that’s all I needed to hear.
March 4th, 2007 at 3:46 pm
Skimming through some of the responses:
“I also wonder if you think the patent system was broken back when it issued 10,000 patents per 46 years rather than 10,000 patents per 3 weeks. Is it cutting to close to home to imagine changes in patent law that would only allow about 10% of the patents we issue these days?”
Sirlin: That fails to take into account what new technologies have come up. The number of patents issued has grown exponentially because many technology fields have also grown exponentially. Back in those days of 10k patents per 46 years, biotech and patents on human-lab made bacteria were virtually non-existant, semi-conductors technology didn’t exist, etc. It’s not software patents either; they still make up a very small minority of patents issued by the USPTO.
I think Jimb0v hit it right in the head in that the concept of patents relating to software in the US is still in its infancy and eventually it will probably sort out by itself. This is kinda evinced by the fact that an examiner typically takes 15 months to post a first office action on a non-software patent, but takes 30+ months for a software one. Actually, I would be more interested in knowing how Japan does it, since I do know that software is directly and explicitly patentable in Japan (the US doesn’t even go that far), and they seem to have no problems as they’ve had software patents much longer than the US or the EU.
Echolocating: Saying a “lack of documentation” is equivalent to a serious flaw is silly. The central theme of Jefferson’s assent to the patent system is disclosure to the public. If things aren’t documented, how can they be considered in the public domain? Take a look at damascus steel; “everyone” knew how to make it prior to 1700, but that information was lost due to a lack of documentation and that is the exact threat the patent office is trying to combat. In fact, we have only very recently been able to guess at how such metals were made and this is certainly information that would have been beneficial to the public. Damascus steel is not an exception either, the same goes with Stradivarius violins and a lot of other technologies that were lost for centuires all because people thought that “documentation wasn’t necessary because it was obvious”.
I also want to reiterate my former point: why don’t any of you participate in the current peer review process then? We do have ex-parte reexamination and inter parte re-examination as means for the public to invalidate patents. If the public isn’t utilizing those avenues, that’s not the fault of the patent office. Although the European opposition system is better and I certainly hope that we adopt that in the future, the public DOES have an effective say in invalidating a patent.
March 4th, 2007 at 10:05 pm
Robb Says: “With the current patent test, novel non-obvious, and useful, software fails the “novel” category everytime. I say this because software is always the same thing, a sequence of executable instructions. Software is this way because the hardware is unique as to what it does.”
I disagree. Hardware fails the “novel” category every time because it is always the same thing. A particular arrangement of protons, electrons, and neutrons.
March 4th, 2007 at 11:08 pm
Yumi Saotome: I thought Jimb0v’s comment about lack of documentation was referring to the documentation used in the review process; that the examiners don’t have proper information when approving certain types of patents. Patents have a use; I’m not arguing their validity… except when it comes to frivolous and obvious concepts.
You admit that technology is increasing at an exponential rate. I agree… so much so that a 20-year stranglehold on an “obvious concept” does way more damage than it did 50 years ago. Does this make sense? So much is happening in the digital realm that frivolous patents stifles 10 or more times more product that in other sectors.
However, for this to have any impact on the proponents of the current patent system, one would have to admit that frivolous patents exist. Once that is conceded, then we can talk about what makes them unwarranted as compared to an acceptable patent. Then we should talk about how the rules might change for software and software related patents.
Microsoft patented the “Scoring Based Upon Goals Achieved And Subjective Elements” in 2003 (#6,604,008). They managed to “trick the patent office examiners” into patenting the foundation of RPGs. Yes, something that has existed for decades. I read the patent and the only thing that makes sense is that there must be flaws in the patent rules and approval processes and/or not all patent examiners are “digitally savvy” enough to handle software patent applications.
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=6,604,008.PN.&OS=PN/6,604,008&RS=PN/6,604,008
Can we all agree that there are unwarranted software patents out there? If not, then defend the patent I referred to above and tell me how the heck that is not a groundless patent.
March 5th, 2007 at 10:30 pm
Here’s the thing. If Microsoft, or anyone else for that matter, reallly did “trick the patent office examiners into patenting the foundation of RPGs” then there are two things that could happen 1) the application could be invalidated by a 3rd party presenting evidence to the patent office (even after it has become a patent); or 2) it will be found invalid in a courtroom.
The problem is that invalidating in a court room is expensive. But honestly, even if thats the case if its blatantly invalid then it won’t cost that much to invalidate it because noone will bow to any of their demands and a judge will throw it out at summary judgement.
March 6th, 2007 at 5:26 am
Ah, the “public” using ex parte re-examination.
The “cheap” solution that “generally costs a total of about $10K” to prepare and file.
(http://mfeldstein.com/iex_parte_i_and_iinter_partes_i_patent_re_examination/)
Yes, us general public have $10,000 lying around that we can afford to use getting rid of a single stupid patent.
“I also want to reiterate my former point: why don’t any of you participate in the current peer review process then?”
I don’t have the tens of thousands of dollars, lots of free time to spare, and/or the extensive legal training necessary? From what I have looked at, you need two out of three. If you have any suggestions that, well, don’t require two out of three, feel free to offer them.
“If the public isn’t utilizing those avenues, that’s not the fault of the patent office.”
If the barrier to challenging a patent is too high (which is one of the main points here), yes it is, because it prevents challenges against even the most spectacularly stupid patents.
And, of course, court is far more expensive.
Damascus Steel and Stradavarius Violins were not lost because they were too obvious to document, they were lost because they were kept as trade secrets. The documentation comment was not about the patent part of documentation, it was two things
1) Some things really are too obvious to document (See: Motivation for combining minigames and loading screens).
2) Patents are - as you said - on a vast number of things. They can be documented and still not be found because they don’t know where to look. Improving the documentation side of things means making information more available to patent examiners so it’s easier to find prior art / discussion of the topic / whatever when it does exist. There are prior art databases and so on, they’re just not all that good yet.
March 7th, 2007 at 12:40 am
The peer review process is evolving. 10k for a normal company in the US is not much. I do agree that cost is prohibitive to an individual though. However, it my experience, it is typically companies that are concerned about being sued for patent infringement.
Regardless, another “cheap” way out of this situation is to send prior art anonymously to the inventors and/or attorneys listed on the patent application while it is still pending. Anyone involved in the prosecution chain has an ongoing duty of disclosure while an application is pending. If you send an awesome piece of prior art to an inventor or attorney working that case they have a duty to cite it to the patent office.
March 7th, 2007 at 11:02 am
That isn’t the analogy i would use. In this case, something very serious is being invented. The first modern-style microprocessors were quite a big step up from the previous ones.
Instead, the proper patent for this analogy would be one “patenting the process of reducing the size of a computer by using more advanced components”. There isn’t really any invention, it’s just combining existing things–new technology and computers–and it’s the kind of thing so stupid you would only have to work with the existing technology for a little while before you could think it up.
March 7th, 2007 at 9:53 pm
David,
Nice article. I’ve written similar things based on my own experience with patents.
I do have some direct experience with that “Crazy Taxi” patent you cited, as I interacted with EA’s lawyers on the case. From my perspective, it’s all the more ironic because I helped develop a “Wild Taxi” game design at Disney, which was pitched to Sega execs years before their “Crazy Taxi” game was made. The Sega game designers might have come up with concept on their own. But just about everything in the Sega patent was part of the original Disney concept (esp. the people jumping out of the way). Whatever the origins, the patent was entirely stupid.
Similarly, I’m also familiar with this Skyline vs. Google/Keyhole patent suit, which could also impact game developers. Skyline, who has an inferior implementation of “earth streaming” IMO, is suing Keyhole, which I was part of, and which has done very well as Google Earth. The patent suit seems to center on the mysterious concept of “quadtrees” or some sort of hierarchy to store and stream a big 3D database… Google is currently challenging the patent’s validity, which is the best possible course of action IMO. The Skyline patent also seems a bit short on implementation details, which _should_ matter, as one of the main rationales for patents was disclosure.
IMO, a patent which simply tries to stick a stake in the ground without disclosing a useful, novel invention is not worthy of a 20 year monopoly. Patents are an exchange of public protections for a real public good, not some sort of anti-competitive corporate welfare system. And with the cost of litigation, they’re certainly not doing anything to help individual inventors anymore.
April 28th, 2007 at 3:48 am
[…] Source: Gamasutra Feature | Sirlin.net […]
May 1st, 2007 at 6:33 am
The Supreme Court just adjusted the “obviousness” test, hopefully in favor of invalidating silly patents. The patent office still needs a different source of income, though, so it won’t be motivated to issue a meritless patent in the first place.
http://arstechnica.com/news.ars/post/20070430-supreme-court-ruling-makes-obvious-patents-harder-to-defend.html
May 2nd, 2007 at 9:53 am
Visitor: Wow! Thanks for that link, and yay to the US Supreme Court on this one.