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08.11
The Patent Swamp
By Marlin P. Ristenbatt
Patents play a special role in
the life of engineers since we are the group of
people from which patents can be expected to
emerge, although non-engineers often obtain
patents. I am a retired Electrical Engineer who
was an IEEE activist in the 1970s and 1980s with
a special interest in “what works for
engineering careers and what doesn’t.” We dealt
with such questions as: is engineering a
profession or simply a job?; are flat
organizations better than hierarchical ones?;
how can a professional society support careers?
I have been inactive in IEEE for
more than 10 years but suddenly became incensed
on Saturday, 23 July 2011, when I listened to a
National Public Radio broadcast of “This
American Life,” entitled, “When
Patents Attack!” (still
available for streaming). This story was
about software patents and patent trolls —
companies that buy patents solely for
litigation, to sue others for patent
infringement. This was easy to do in software,
where patent claims were often broad and
ambiguous. Vacant offices were maintained as
mail drops by these companies in judicial
districts where the companies could easily file
suit. The goal wasn’t to go to court, however,
but to settle the suits outside of court. This
is less expensive for small software companies
than going to court. The desired outcome is
getting a license to use the patent and an
agreement to pay royalties for that use. This
was likened to extortion of protection money, a
favorite tactic of the Mafia!
Patent litigation has been a
thorny problem from the outset. Challenges to
the famous wideband Frequency Modulation case
involving Edwin Armstrong and his patent awarded
in 1933 were settled only after the principals
were dead; the Alexander Graham Bell litigation
(over the variable resistance microphone) and
the Marconi (radio transmitter and receiver)
cases are other examples. Hence it should not
be surprising that Congress has had difficulty
in drafting legislation that preserves integrity
and pursues positive goals for both the players
and the consumers. I can recall the debates,
and had a personal friend who was involved,
about getting Software Patents accepted in the
late 1980s.
After listening to the NPR piece,
I have come to believe that the integrity of the
software community is under attack. The
engineer in the piece, awarded a patent for “An
Online Backup System” (patent #5771354) admitted
that “he didn’t think he should be filing his
patent.” More than 5,300 other patents have
been awarded with similar claims. But the patent
was awarded in 1998, and the
near-universal present practice of downloading
software from the Internet infringes some of its
claims. The patent was sold several times, to
shell companies whose only interest is financial
gain from charges of infringement. The purpose
of patents is to provide protection to inventors to foster innovation and permit those who
innovate to reap rewards for their efforts.
Article I, Section 8 of the U.S. Constitution
provides for this protection. But here we have
innovation suppressed. It is estimated that 80
percent of patents today actually hinder
innovation because their claims are too broad.
So, with engineers being drawn into unethical
acts, shell companies with fake addresses being
formed to behave much like the Mafia, I believe
we have entered a “swamp.” Integrity is perhaps
the greatest contribution that science and
engineering have contributed to modern society;
an attack on it is an attack on society itself.
By making it harder to defend
patents, the Patent Reform Act (“America
Invents”)
will not correct this
problem; small patent holders
will be forced to spend more money on lawyers
with less available for investing in jobs and
R&D.
The opinions expressed are the
author’s.
Marlin Ristenbatt was an
early participant in the formative years when
IEEE, through IEEE-USA, adopted career support
as well as “science and literary” goals. He was
chairman of the Career Maintenance and
Development Committee for many years. He is
emeritus Research Engineer in the Electrical
Engineering Department of the University of
Michigan and author of several textbooks.
Comments may be submitted to
todaysengineer@ieee.org.
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