Everyone was excited when Oracle (NASDAQ:ORCL) sued Google(NASDAQ:GOOG) over the use of the Java programming language in the Android operating system, using a series of obscure patents that no one had ever heard of before. A lot of digital ink was wasted on commentary by a variety of people, most of who either:
- Didn’t know anything about patents
- Didn’t know anything about the legal system
- Didn’t know anything about the history of the United States
- Didn’t know anything about the Constitution of the United States
- Appeared to be illiterate
- Appeared to have no understanding of logic
- All of the above
SemiAccurate doesn’t claim to be Patent Experts, Legal Experts, Historical Experts, or Constitutional Experts. We can, however, read and we do know a bit about logic. Tie that together with some knowledge of each of the above fields, and while we may not know everything, we know something, and we are SemiAccurate.
The Organization of the Country – The First Constitution – The Articles of Confederation
Our first article in this series covered the forces behind the formation of the United States of America. The formation of a country is much like the formation of a Garden Club, a Bowling League, a Hunt Club, a Religion, or a Science Fiction Convention. If the organization is meant to survive it’s founders, rules and regulations have to be put in place to handle mundane day to day things, like who puts out the trash. For that matter, what is defined as trash?
Like any organization, the United States required a set of basic rules to function. This basic set of rules, codified in the Articles of Confederation, was a miserable failure. The Articles of Confederation was a compromise. The States were worried about transferring too much power to a central authority. Thus the Articles were written to starve the central authority. Unfortunately this didn’t make for an effective government.
The Constitution, was far more important than any other document in the history of the United States, including the Declaration of Independence. Without a Constitution it was quite possible that the colonies would fracture, and weakened fall once again under British control. Just to the north the Canadian Governor General had troops, and loyal subjects. Much to the annoyance of many Americans a fair number of their neighbors had migrated north to Canada, to remain under King George’s rule. The United Empire Loyalists were met at the border with open arms. Land grants were available to Loyalists coming to Canada, and may have enticed many, who would otherwise have been neutral, to remain subjects of George III.
With the Articles of Confederation considered a failure, a Constitutional Convention was called, and a new Constitution was drafted. The Constitution consisted of a Preamble, Seven Articles, a list of Signatories, and Twenty-Seven Amendments. The part of the Constitution which covers Patents (and also Copyrights) is Article One, Section Eight.
Section 8 of the Constitution starts with the words:
The Congress shall have Power
Each line after this begins with the word ‘To’, and deals with a specific set of powers, for example the eighth line reads:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Note that though considered ‘Intellectual Property’, Trademarks are not covered by the Constitution. And while the above is considered to cover Patents and Copyrights, it does not mention them by name.
There is also disagreement as to exactly how the above wording is to be interpreted. One interpretation is the word ‘shall’ requires Congress to run a Patent System, however that interpretation would be problematic if applied to line eleven:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
in that it would require Congress to constantly declare war.
Some interpreters, notably patent attorney lobbyists for certain industries, would rather ignore line eleven in their argument that the word ‘shall’ in line eight means that the framers of the Constitution intended that Congress be required to implement a Patent System. That line eight doesn’t mention the word Patent once doesn’t phase them. When it is pointed out that Congress could decide that an appropriate time is one month, they scream that this would be un-Constitutional. When it is pointed out that the Constitution leaves the time period to the discretion of Congress, and that therefore the framers of the Constitution must have meant for Congress to be able to choose a protection time of one second if they deem it a fit time, the pro-Patent lobby generally holds it’s breath until it turns purple, and then threatens to shoot itself. Take your daily dose of cynicism to continue reading.
Patents, Patents, where art thou Patents
In part this comes from reading. Consider the following patents issued by the United States Patent and Trademark Office (shortened to U.S.P.T.O.):
- U.S. Patent 5,443,036, “Method of exercising a cat”, covers having a cat chase the beam from a laser pointer.
- U.S. Patent 6,004,596, “Sealed crustless sandwich”, issued in 1999, covers the design of a sandwich with crimped edges.
- U.S. Patent 6,025,810, “Hyper-light-speed antenna”, an antenna that sends signals faster than the speed of light.
- U.S. Patent 6,368,227, “Method of swinging on a swing”, issued April 9, 2002
- U.S. Patent 6,960,975, “Space vehicle propelled by the pressure of inflationary vacuum state”
- U.S. Patent 2,886,976, “SYSTEM FOR CONVERTING ROTARY MOTION INTO UNIDIRECTIONAL MOTION” aka The Dean Drive Patent One
- U.S. Patent 3,182,517, “VARIABLE OSCILLATOR SYSTEM” aka The Dean Drive Patent Two
- U.S. Patent 4,050,426, “Method and apparatus for treating liquid fuel” covers the long held dream of having a magnet work on non-magnetic materials.
- U.S. Patent 7,490,593, “Magnetic conditioning apparatus for diesel engine fuel” is another magnetic conditioner
- U.S. Patent 5,894,079, “Field bean cultivar named enola” covers a Mexican Yellow Bean being grown in the United States
United States Patent law is very clear on certain points. A patent may only be issued if certain criteria are met. These are:
- The invention must be new/innovative.
- It must be not obvious or have an “inventive step”
- It must be useful or have “industrial application”
- It must contain patentable subject matter
- Other details
Number Four may seem to be recursive, but it is important. Let’s take a look at each of the five.
1. New / Innovative
The invention must be novel. U.S. Patent 5,443,036, “Method of exercising a cat” for example. This is a patent that most people would regard as obvious, but the U.S.P.T.O. issued the patent. The U.S.P.T.O. has legal limits to the prior art databases it is allowed to search. Even if the U.S.P.T.O. examiner who worked on this patent was a cat owner, who regularly exercised his or her cat with a laser pointer, he or she is not allowed to use that information in evaluating a patent, because that information did not come from an approved database.
Effectively common sense gets parked at the door when examiners arrive at work in the morning, and they enter a world much like what Alice found at the bottom of the rabbit hole, where things really aren’t quite what they seem. Because the rules disallow certain types of evidence, it is possible to patent something that has been in general use for years prior to the patent being applied for. Take the case of the Enola Bean, which has been categorized as one of the worst cases of bio-piracy ever to occur. It took ten years to get the patent on the Enola Bean overturned. Even worse, the money that the patentee managed to use the system to extort over those years will never be repaid.
2. Not Obvious
Non-obvious means that the idea shouldn’t be obvious, a recursive definition at it’s best. Take U.S. Patent 6,368,227, “Method of swinging on a swing”, most children seem quite capable of working this out on their own, without needing to read a patent. That would tend to indicate that this would be obvious. Apparently not to the U.S.P.T.O.
This was supposed to cover simple modifications to existing devices, and combinations of existing components. If an internal combustion engine powered four wheeled vehicle exists, modifying it to make an internal combustion engine powered three wheeled vehicle isn’t really an inventive step. Modifying it so that it would fly, now that would be different.
Useful, meaning that a ‘real’ result occurs. A company called Chifton ran a series of Margarine commercials in the 1970s where “Mother Nature” got upset because she mistook Margarine for Butter. Her line was “You can’t fool Mother Nature!”
In real life you can’t fool Mother Nature. 2+2=4 all of the time, every day. So does E=MC2. For a patent to be issued, the invention has to work, if it doesn’t work, it’s not eligible for patent protection. Unfortunately the U.S.P.T.O. is incapable of determining whether an invention works or not, and often issues patents for things that are scientifically impossible as they break natural laws.
U.S. Patent 4,050,426 and U.S. Patent 7,490,593 are both scientifically impossible. While magnetic fields can affect non-magnetic materials, the field strength required to have any impact on diesel fuel would imply a magnet at least the size of a bus. Since the device in question is supposed to be used on the engine of a bus, this would be slightly impractical. We think the U.S.P.T.O. thought they were Godzilla that day and the size of structures were a bit off.
4. Patentable subject matter
The U.S.P.T.O. can only issue patents for inventions as defined in the regulations which govern it’s operation. This may change from time to time because of new regulations, and it may also change due to case law (i.e. someone may sue the U.S.P.T.O. and through the suit the U.S.P.T.O. may be forced to allow patents to be extended to another range of materials. This is what effectively happened to Business Methods and Software Patents).
So even if you try and patent something that isn’t technically patentable, if you find a friendly court, you might be able to get the court to order the U.S.P.T.O. to give you a patent.
5. Other Criteria
In addition to the above, there are two other important points. One is Prior Art. All known Prior Art must be listed. If the U.S.P.T.O. finds out that there is prior art that was not listed on the patent application, the U.S.P.T.O. is supposed to invalidate the patent.
The other issue is the description. The issue of a monopoly is undertaken in exchange for the knowledge of how to build the invention. If the inventor withholds the information needed to build the invention, then the patent is invalid. Specifically the patent application must contain a description that would allow a person with “knowledge of the art” to build the invention, someone who is a professional in the field.
The first two parts covered the basics of the Patent System in the United States. Part Three will cover the history of Oracle v. Google. Part Four and on will look at each of the patents that Oracle has sued Google over, using the U.S.P.T.O. database, considering the five criteria above. We will use the U.S.P.T.O. Database and not Google’s database, to be fair to Oracle.S|A