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August 13, 2007

The Sad State of Patent Effects

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Posted by Alan Wexelblat

I get paid for being a usability expert, human factors and interaction designer. As part of that I read some email lists on which people in my field talk about things like work, design, and so forth. On one such list a discussion arose of Apple's recent patent application related to its touch interfaces ("Multi-Touch Gesture Dictionary", Application 20070177803).

Sadly, several people immediately raised an objection to discussing the patent, its claims, and so forth. Why? Because some list members work at companies that forbid them to access patents, issued or otherwise. Never mind that this information is in the public domain for a reason, the legal 'eagles' at these companies are actively working to block the line employees - designers, coders, etc.- from being exposed to this information.

Presumably the excuse is some kind of plausible deniability, but that's absurd. A product either infringes or does not infringe on the basis of its methods and operations when compared with the claims in the relevant patent. The knowledge of existing patents that the product's makers had or lacked isn't relevant to the question of whether or not an infringement occurred.

Perhaps there's a confusion between patents (public) and trade secrets (not public). Obviously one is not supposed to dissect a competitor's product in order to determine how it works and copy that. Patent law requires very specific disclosures and in theory a person skilled in the art is supposed to be able to reproduce the device or method claimed in the patent. Never mind that mere mortals can't make head or tail of what actual patent claims language says - we're talking theory here.

I suspect what's going on with these colleagues of mine and their employers is either gross incompetence on the part of the legal departments drawing up these policies, or overzealousness of implementation of policies that may not be as stupid as they seem when put in practice.

One alternative theory is that the extreme litigiousness around patents in the design and software business, and the headlong rush to patent everything, have created such an atmosphere of fear and uncertainty that companies are just calculating that ignorance is the smaller risk. That's terribly terribly sad, if true. Whether we like or dislike the current use of patents in the software world (I dislike the practice and am neutral on the theory) I can't see any possible way in which large-scale corporate-enforced ignorance can make things better.

Comments (4) + TrackBacks (0) | Category: Big Thoughts


1. Chris Beck on August 13, 2007 8:14 PM writes...

The phrase here is "triple damages" - for willful infringement. If the patent owner can prove that you knew about the patent, then when you get busted they get more money.

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2. Ron Harris on August 14, 2007 1:27 AM writes...

This is not because of incompetance of in-house counsel. It is because of willfull infringment and ALSO inequitable conduct, a/k/a fraud on the patent office, which if found will cause a patent to be declared unenforcable. An employee who does not know about prior art patents is pressumably less likely to be deposed during enforcement litigation over one of his company's patents and unexpectedly admit that he or others at the company knew about some piece of prior art that would have been material to examination of his company's patent, but for some reason withheld it during prosecution of the patent-at-issue.

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3. Erik Schmidt on August 14, 2007 9:50 AM writes...

It is sad that fear of willful infringement and inequitable conduct claims have come to play such a strong role that they keep researchers from accessing patents.

From what I've read, one of the economic theories behind patents is that because they are made public, they encourage competitors to find many ways to solve the same problem. Thus, competitors should be able to examine Apple's patents in order to find novel ways of solving the same problems, without infringing on Apple's patents.

It seems completely backward to maintain a system in which all players other than the patentee are supposed to remain willfully ignorant of the state of the art in their field.

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4. Thomason on August 20, 2007 9:27 AM writes...

Another consideration is the cost for a company to discover whether, and which, employees knew about which patents - should there be an issue of infringement. Imagine the cost of gleaning every search, every print command, etc., of every employee who may have had some curiosity about what patents exist in a certain field.
If the employer has a policy against employee's use of company resources to search and review patents, then that mitigates the potential obligation to conduct expensive, wide-ranging efforts to discover the who, which and what associated with that conduct.

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