Date: Tue, 15 Dec 1998 11:50:35 -0500 From: srctran@world.std.com (Gregory Aharonian) To: Jonathan Corbet <corbet@eklektix.com> Subject: Re: IBM patent message Sure - use the article. If you have room, here is some information on my Internet Patent News Service, which is free, something I think will be of increasing interest to the Linux world. Also attached is some information on software patents, which you can send out as well. Greg INTERNET PATENT NEWS SERVICE How to subscribe The Internet Patent News Service is a mostly daily news service dealing with information about the patenting world. Topics include announcement from various Patent Offices around the world, stories about who is suing who, interesting new patents and styles of patent drafting, statistics on issued patents (with a focus on software patents), reviews of patent books and computer programs, and biting commentary if I happen to be in a lousy mood that morning. Additionally, contributions are solicited from anyone with some patent issue they have an opinion on, as well as explanations from patent lawyers about some of the issues raised in the news items. Also we have a Web site with a variety of files on patent issues at: http://sunsite.unc.edu/patents/intropat.html which amongst other things has the US Manual of Classification with patent title retreival by patent class/subclass. To subscribe to the daily news service, please send the message NEWS to the following email address. Also, if you don't mind, please include some information on what you do and how you might use this patent information. Forward the request NEWS to: patents@world.std.com PLEASE INCLUDE YOUR FULL NAME AND AFFILIATION. Please pass the word, especially to those not on the Internet or that don't read USENET. Patent information is very valuable for finding out what others are doing, for locating new technologies to license, and to measure rates of progress in other fields. For $40, I sell an MSDOS hypertext archive of past news stories, currently over 400 taking up a few megabytes of space. To order, send a check to the address below. If you have any questions, please contact me at patents@world.std.com and I'll get back to you. Gregory Aharonian Source Translation & Optimization P.O. Box 404 Belmont, MA 02178 617-489-3727 patents@world.std.com !19981018 17,500 software patents to issue in 1998 1998 Software patent statistics - Jan. to Sep. Based on an analysis of 3336 software patents issued circa January/August of 1998, I have put together the following statistics. Simply put, in 1998 and 1999 the PTO will issue 40,000 software patents, ten times the amount issued six years earlier in 1992 and 1993, without ten times the resources. In short - - 1998 quicky stats: 17,500 software patents; IBM/Microsoft/Sun/HP in top ten, 300 Internet specific patents (even more in 1999), 700 financial/business patents (today's Business Week 10/26 has complaints from Wall Street) - That a software patent issues means nothing about the patent's novelty and/or obviousness - >50% of these patents are invalid because >80% cite insufficient to zero non-patent prior art - US software patent system (PTO, patent bar) has no credibility beyond that of a statutorial registration system - Rule 56 is a failure - Large companies getting the bulk of software patents use them to create barriers of entry for other big, and small, companies - 40,000 patents means $50,000,000 in application issue fees, and $40,000,000 in maintenance fees some years later - definitely helps make the PTO a profit center - The quality of issued software patents can be improved greatly within the PTO's current powers and budgets - it refuses to do so so it won't lose the above fees Here are software patent statistics for the 1990s decade, with the 1996 to 1999 figures estimates: 1999 22500 ---| 1998 17500 -------- 40,000 1997 13000 1996 9000 1995 6100 1994 4500 1993 2400 -------- 4,000 1992 1600 ---| 1991 1500 1990 1300 Incredible growth with no relationship to the minimal revolutionary innovation nature of the software industry. There will be 100,000+ active US software patents in the year 2000. Typical current issues of the PTO Official Gazette are listing 500+ new patents each week - the week of Sept. 1st saw 518 new software patents. Get ready to be sued. How well are these patents being examined? More specifically, how well are these patents being searched to assess novelty and nonobviousness under sections 102 and 103? In short, poorly. The PTO refuses to give examiners enough time, money and resources to search. For yet another year, over 50% of software patents cite NO non-patent prior art, the average patent citing only 3.1 non-patent prior art items, which is woefully inadequate, since there are dozens of highly relevant non-patent prior art items for most of the patents being issued. And too many large companies are hiding behind the impotence of Rule 56 to not do any searching themselves. Some numbers: Number of non-patent Percentage of issued prior art citations software patents -------------------- -------------------- 1998 1997 0 53 51 1 12 14 2-3 14 15 4-10 15 15 >10 6 5 Average number of non-patent prior art cited in 1998 - 3 articles Average number cited ignoring outliers - 2 articles Average number of prior US patents cited - 11 patents Average number of prior foreign patents cited - 1 patent Less than six percent of the patents cite even half of the relevant amount of prior art. As I shall argue later this week, bibliographically this means software patents should be presumed to be invalid. Patent 5,796,943 is a good example of the system not at worked - a smart card patent that cites NO patent prior art and NO non-patent prior art. Sadly, these numbers have changed little since I analyzed 1000 software patents in the first few months of 1994. Thus since Compton's multimedia patent forced the PTO pay attention to software patents, the PTO has made absolutely no progress in improving the quality of issued patents, despite the unsubstantiated comments to the differ made in public by the heads of the various computing examining groups (2300/2400/2700). If anything, the quality of patents has dropped substantially, given that there is no way any government agency can increase its output TEN fold in six years while having increased its process resources (examiners, tools) much less so. So despite 4 years of gimmick fixes by the PTO, the 'wisdom' taught by the Scatological Patent Institute, stick-heads-in-the-sand agendas of the software committees of the AIPLA, and examiner access to the Internet (yes, I know examiners are using Yahoo/Altavista/etc. - I don't for my busts), little has changed in the quality of issued patents. Couple this with a PTO management style that deliberately encourages invalid software patents to issue, as one examiner recently lamented to me: Greg: One of the reasons so many "crappy" software patents issues is that examiners are forced to do so. The PTO's production system discourages CONTINUED searches is a really big problem, for 2 reasons: 1) upon 1st amendment, PTO management's strong encouragement to either: issue or make final (do NOT continue searching) 2) in effect, actually taking AWAY counts for finding new art with which to make a rejection (for continuing to search) Why? We not only get no points for non-final-rejections, but a non-final rejection also takes much longer to finally go to a count (abandonment or issue) So if they rewrite their claims to get around our first action, they usually win, especially if they throw in additional claims to drag things out. Thus, we might throw a couple of good punches, but essentially we always are forced to quit the fight in the first round. And applicants know this. So patent applicants and their lawyers hide behind the impotence of Rule 56 to not send in any non-patent prior art, forcing the examiner to rely mostly on patent prior art in one round of searching to decide 102 and 103. A joke if it wasn't so unethical. Who is getting the patents? For the most part, it is American and Japanese companies and individuals: United States 60% Japan 25% Europe 9% Asia 3% Others 3% Europe has yet to appreciate the trade barrier potential of software patents, and EC bureaucrats should be more willing to spend money to deal with this problem. Currently they are dragging their feet, to the great disadvantage of the European software industry. And at least for software, EPO does just as bad an examination job as the PTO - the EPO's better reputation cannot be extended to software patents (comparisons of PCT search results shows little difference between EPO and PTO). WHO'S GETTING THE PATENTS Microsoft and Sun are firmly in the top 10, with Apple probably soon to join them. MIT is the lone university with significant numbers of software patents. IBM, still number one in (invalid) software patents, though its percentage is dropping. For years, IBM had been getting about 9 percent of the software patents, though in 1998 it is in the area of about 7 percent. ATT dropped out of the top 10, with its spinoff Lucent taking its place. Automobile companies continue their rise (Ford, Toyota, Honda). Estimates of software patents by companies in 1998 (based on 3336 sample) 1200 IBM 360 Motorola 330 Fujitsu 330 Canon 310 Microsoft 300 Lucent / BellCore 280 NEC 260 Sun 260 HP 250 Sony 250 Hitachi 240 Xerox/Fuji Xerox 240 Mitsubishi 230 Intel 220 Toshiba 190 Apple Computer 160 Siemens Aktiengesellschaft 150 Samsung 150 Eastman Kodak 140 Telefonaktiebolaget LM Ericsson 130 Compaq/DEC 120 ATT 110 Nikon 110 Matsushita Electric 100 Seiko 100 Toyota 100 Sharp 90 Ricoh Corporation 90 Honda 80 Nokia Telecommunications 80 U.S. Phillips 80 General Electric 70 MCI Corporation 70 Bell Atlantic Network Services 60 Yamaha 60 Pitney Bowes 60 Olympus Optical 60 NCR 60 Mita Industrial 60 Ford 60 Brother Kogyo 50 Oracle 40 MIT These companies mostly have a strategy of quantity over quality so that they can play licensing games (often when IBM comes knocking - see the 3/17/97 article in Business Week). That some of the biggest also dominate the Software Patent Institute makes it not surprising that the SPI is a fraud. SOFTWARE PATENT CATEGORIES What's being patented? Everything still for the most part. Networking patents increasingly dominate, with automobile/vehicle patents continuing their steady rise. Optics is also becoming popular, with the camera and copier companies getting lots of software patents. Estimates of software patents by categories in 1998 (based on 3336 sample) 3800 Networking / Communication 2200 Operating Systems 2000 Image Processing 1350 Vehicles 1350 (Graphical) User Interfaces 1200 Graphics 1200 Process Control 990 Signal Processing 980 Office Automation 940 Security 930 Engineering 840 Database 840 Optics 830 Medical 810 Numerical Analysis 710 Biological 700 Financial 650 Distributed Processing 580 Digital/Analog Circuit Design 500 Speech Recognition/Synthesis 510 Pattern Recognition 475 Computer Aided Software Engineering 470 Physics 410 Navigation 410 Word Processing 360 Entertainment / Multimedia 310 Compression 300 Internet 300 Object Oriented 290 Computer Aided Design 280 Chemical 250 Games / Gambling 240 Geophysical 220 Character Recognition 200 Neural Networks 190 Multiprocessing 190 Natural Language Processing 170 Manufacturing 160 Algorithms / Data Structures 150 Robotics 150 Artificial Intelligence 120 Agricultural 100 Music 95 Simulation 95 Parallel Processing 90 Fuzzy Logic 80 Genes/Genetic Analysis 75 Education 50 Virtual Reality 25 Vision 20 Spreadsheets 6 Quantum Computing 6 Java 6 Year 2000 Topics slipping in the ranks include music, education, word processing, and artificial reflecting industry trends. PTO EXAMINING GROUPS Who is examining these patents? About two thirds are still being handled by the Computing/Communications megagroup of Groups 2300/2400/2600/2700, but other groups are handling one third of the software patents, a large number for which some of these other groups are not qualified to examine (worse by not having any software search resources directed their way). Further I see some companies filing most software ideas written in such a way that it is handled by the non-software/hardware groups. PTO Groups ------------------------------------------------------ 35% - Computing Megagroup 2700 12% - (was mostly hardware) 2300 8% - (was mostly software) 2400 66% 11% - (was telecommunications) 2600 ------ 34% 11% - Ind. Elect./Special 2100/2200 4% - Electrooptics 2500 10% - Mechanical 3100/3200/3400/3500/3600/3700 7% - Medical Devices 3300 2% - Chemical 1100/1200/1300/1500/1800 How about other countries? Based on filings, my rough estimate is that there are twice as many Japanese software patents as there are US, though the Japanese patents tend to be these short, low number of claims, patents. My other guess is that there are about half as many European software patents as US. China is a big unknown, with more patents than Japan. All together, as we enter the next century, there should be about 300,000 active software patents around the world. Greg Aharonian Internet Patent News Service (for info on free subscription, send 'help' to patents@world.std.com ) (for prior art search services info, send 'prior' to patents@world.std.com )