Thursday, March 27, 2008

Dudas, IBM's toilet queue patent, and patent quality

Nate Anderson at Ars Technica on March 27 wrote: At a talk today at the Tech Policy Summit in Hollywood, Dudas shed some light on why companies file such patents in the first place, and what his office hopes to do about it.

Although not specific, Dudas was talking about IBM's US patent 6,329,919 titled System and method for providing reservations for restroom use (also to IBM but later withdrawn), which has been discussed on IPBiz. Nate Anderson didn't bring the point home, but IBM, and many of the other IT entities calling for patent reform, are the entities filing these silly applications, and sometimes getting issued patents. Many of the intellectual property reformers, who gladly talk about the Smucker peanut butter and jellly patent (now actually gone), simply will NOT talk about some of IBM's more curious patents. The Ars Technica piece didn't get into the current situation, or note that the proposed new burdens would be unlikely to change IBM's strategy. Anderson's piece is really a non-starter.

Further, Nate Anderson falls victim to the Quillen/Webster assertion that patent grant rate correlates with quality: These things don't "promote innovation," as Dudas noted, but they do make increasing economic sense for many businesses. The result has been predictable; a surge in bad applications. Over the last 40 years, the USPTO granted 62-72 percent of all patent applications, but that number has been dropping. In the first quarter of this year, only 43 percent of applications have been granted.

Anderson quotes Dudas on the likelihood of patent reform: Will the reform bill pass? Though generally unwilling to make positive predictions on legislation, Dudas does believe that the bill has more than a 50 percent chance of passing during this session of Congress, and it could come up for a vote within the next few weeks.

See also:

On 28 March 2008, Anne Broache of CNET covered the same meeting in an article titled
Patent Office chief aims to be 'technology neutral'
. Broach wrote:

"The system we've had has worked to promote technology for 200 years, and it can do that in the software industry, so long as you follow the principles that (a technology) is useful, new, and nonobvious," Dudas said during a wide-ranging interview with CNET at a technology policy conference here [Hollywood] this week.

Broach quoted Dudas: "Software, biotechnology, business methods--In the United States, the Supreme Court has consistently held that those are areas where there should be patents, and those industries have flourished." [IPBiz: What has the Supreme Court said about patenting software?]

Of business method patents: "Probably in the last three years, of all the (business method patent) applications that have come in the door, the office has said 85 percent of these are not allowable. The patent system, I believe, is working very well... We're starting to get a higher percentage of business method patents being approved, probably in the 20 percent range."

Dudas was quoted: "We want to make certain that people can't apply with a very broad patent application, which they know will get rejected. And then they get back in line, and meanwhile, they're looking out and seeing what's happening in the market. Sometimes they see that if they focused that broad claim, it could cover an existing technology... Then, (going by) the date of first filing, they can then say, 'I own that technology'... That's a very real concern. That gets more in line with concerns of troll behavior--someone who is literally watching the they can rise up out of the bridge and sue people."

Note the discussion of the "written description" requirement in JPTOS, pp. 743-746 (Sept. 2006) and see

See also United States Patent 7222820


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