September 03, 2009

Will Google's "Home Page" Patent Embolden Patent Abuse?

Greetings. I've written many times regarding abuses of the U.S. patent system. (Here's a Wired column of mine on the topic from 2002: Stop the Patent Process Madness.)

For years, we've watched as the patent system has been turned into a confused mess, where seemingly trivial and commonplace concepts have been awarded patents, the existence of obvious prior art notwithstanding.

The problem has been particularly acute in the areas of software and other technology intellectual property patents, and business method patents. The situation is insane that small firms are terrified of bringing new products to market for fear of infringement lawsuits, and larger firms just plow ahead assuming that they can work out licensing rights later, even from the lowest-of-the-low "stealth" patent perpetrators.

So the patent just awarded to Google for their home page must be viewed in the context of broader patent process problems.

A major patent law blog argues today that Google's Home Page patent -- as a "design" patent -- is something of a paper tiger:

"Design patents have severely limited scope, only cover ornamental designs rather than technological advances, and are very frequently found invalid when challenged in court. The USPTO has been granting design patent protection for screen shots and icons for many years. However, to my (limited) knowledge, none of those design patents have ever been enforced in court. As with most design patents, it appears that during prosecution, the PTO never issued a substantive rejection based on novelty or obviousness."

The apparent lack of a functional "novelty or obviousness" requirement is, well, pretty obvious if we look at prior art, for example, the Lycos Home Page circa 1996. Yes, there are some small ads on the Lycos page, but fundamentally it's a quite utilitarian layout that would be easily recognized by most observers as at least falling into the same category as Google's Home Page.

So does the Google Home Page patent really matter?

After all, Google historically has certainly not been a rabid enforcer of its patents, and generally worked hard to maintain a very community-positive orientation toward its works, with many of them explicitly open-sourced for the benefit of the world.

And it could most certainly be argued that what Google is really doing with this design patent is simply providing another layer of protection against bold and direct ripoffs of substantive Google intellectual property graphical designs.

In fact, it's not Google's own actions regarding the possible enforcement of this patent that concern me -- I don't expect anything approaching a heavy-handed enforcement regime at all.

What I am concerned about in this context is the message that the granting of this patent sends to the community more broadly, and its possible second-order effects of triggering the filing of ever more patent applications with ever more constricting and expensive impacts, especially outside the confines of the "design" patent category itself.

Similarly, the emboldening of serious patent abusers, operating from their selfish and self-centered points of view, and with a misinterpreted "What's good for Google will be even better for us!" attitude, is a significant potentially negative second-order effect.

Basically, I find it difficult to endorse actions -- even ones that seem essentially benign and limited when viewed in isolation -- but that may have the effect of exacerbating the ongoing patent mess by inspiring (or unintentionally helping to justify) the actions of others who may have seriously greedy intents.

So while it's understandable why Google chose to use a design patent to protect its home page, the fact that they felt it necessary to use the patent system for this purpose in the first place is yet another red flag that the patent process has morphed into a mutated caricature of its original purpose.

The use of the patent system as a universal "protect anything and everything" mechanism carries with it enormous costs to society at large. Despite the best efforts of the USPTO, the system has spun out of control and is in desperate need of major changes that go far beyond current reform efforts, followed by a total reboot.


Posted by Lauren at September 3, 2009 12:35 PM | Permalink
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