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The Patent Mess: One Step Forward, Two Steps Back

It's a hopeful sign that once again the U.S. Patent and Trademark Office has rejected one of five patents at the heart of the NTP-RIM suit. But don't get your hopes up. At the same instant we get more signs that the patent nightmare is far from over — the USPTO has granted a patent that its gleeful owner and his equally gleeful phalanx of lawyers declare
It's a hopeful sign that once again the U.S. Patent and Trademark Office has rejected one of five patents at the heart of the NTP-RIM suit. But don't get your hopes up. At the same instant we get more signs that the patent nightmare is far from over — the USPTO has granted a patent that its gleeful owner and his equally gleeful phalanx of lawyers declare covers every form of rich media on the Web. Come on, Washington, can't anybody here play this game?In the case of the rich-media patent, the gleeful Neil Balthaser says, "You can consider it a pioneering or umbrella patent. The broader claim is one that basically says that if you got a rich Internet application, it is covered by this patent."

I'd have a lot more respect for Balthaser if I thought he had actually pioneered anything. Here's the abstract for Patent No. 7,000,180, titled "Methods, Systems, And Processes For The Design And Creation Of Rich-Media Applications Via The Internet." Try to find something that nobody had thought of before Balthaser in the following:


"A host computer, containing processes for creating rich-media applications, is accessed from a remote user computer system via an Internet connection. User account information and rich-media component specifications are uploaded over the Internet for a specific user account. Rich-media applications are created, deleted, or modified in a user account, with rich-media components added to, modified in, or deleted from the rich-media application based on information contained in a user request. After creation, the rich-media application is viewed or saved on the host computer system, or downloaded to the user computer system over the Internet."

Whatever innovative thought Balthaser had seems to have been used up inserting "rich media" six times and "Internet" twice into a generalized, though not particularly clear, description of how interactive computer applications have worked for the last three decades or more.

I've got three questions:

  1. How can the U.S. Patent Office let stuff like this go on? Patents are supposed to protect genuine innovation. Instead, thanks to very bad policy-making and what looks like utter disregard for simple common sense at the Patent Office, the U.S. patent system, once the engine of the world's most powerful economy, has become a tool for commercial blackmail and a drag on the very environment of innovation it is supposed to foster.

  2. Why doesn't the current administration, the most pro-business administration in the history of the Republic, do something about this? Both the White House and the Congress can't seem to be bothered, even though you'd think they would be falling all over themselves to get credit with the business community for tackling this very real business problem.

  3. When will companies large and small stand up and say "No more"? Unfortunately losing a patent suit looks like just another cost of doing business to many companies — chickenfeed in the grand economics of the computer business, and companies seem find it easier to pay off than fight. (With the signal exception of RIM, of course.)

As things stand, abusing the patent system is an equal-opportunity business plan, and the Patent Office seems only too happy to cooperate. When it rewards content-free prose like "Rich-media applications are created, deleted, or modified in a user account" with protected status it is creating junk patents, the equivalent of the junk bonds that so greatly damaged the financial markets in the go-go years.

Junk patents are an equal-opportunity business plan. It's not just patent trolls who use junk patents to pick the pockets of big companies. Big companies are building up stockpiles of junk patents to use as weapons against genuine innovation by companies with good products and good marketing but pockets not nearly deep enough to defend against a patent suit.

In the RIM-NTP suit it's really the Patent Office that's on trial. The Balthaser patent doesn't give evidence that it's learned anything from its failures.