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The Anatomy of a Trivial Patent

Richard Stallman

Programmers are well aware that many of the software patents cover

laughably obvious ideas. Yet the patent system's defenders often

argue that these ideas are nontrivial, obvious only by hindsight. And

it is surprisingly difficult to defeat them in debate. Why is that?

One reason is that any idea can be made look complex when analyzed to

death. But another reason is that these trivial ideas often look

quite complex as described in the patents themselves. The patent

system's defenders can point to the complex description and say, "How

can anything this complex be obvious?"

I will use an example to show you how. Here's claim number one from

US patent number 5,963,916, applied for in October 1996:

1. A method for enabling a remote user to preview a portion of a

pre-recorded music product from a network web site containing

pre-selected portions of different pre-recorded music products, using

a computer, a computer display and a telecommunications link between

the remote user's computer and the network web site, the method

comprising the steps of:

* a) using the remote user's computer to establish a

telecommunications link to the network web site wherein the

network web site comprises (i) a central host server coupled to a

communications network for retrieving and transmitting the

pre-selected portion of the pre-recorded music product upon

request by a remote user and (ii) a central storage device for

storing pre-selected portions of a plurality of different

pre-recorded music products;

* b) transmitting user identification data from the remote user's

computer to the central host server thereby allowing the central

host server to identify and track the user's progress through the

network web site;

* c) choosing at least one pre-selected portion of the pre-recorded

music products from the central host server;

* d) receiving the chosen pre-selected portion of the pre-recorded

products; and

* e) interactively previewing the received chosen pre-selected

portion of the pre-recorded music product.

That sure looks like a complex system, right? Surely it took a real

clever guy to think of this? No, but it took cleverness to make it

seem so complex. Let's analyze where the complexity comes from:

1. A method for enabling a remote user to preview a portion of a

pre-recorded music product from a network web site containing

pre-selected portions

That states the biggest part of their idea. They have selections from

certain pieces of music on a server, so a user can listen to them.

of different pre-recorded music products,

This emphasizes their server stores selections from more than one

piece of music.

It is a basic principle of computer science is that if a computer can

do a thing once, it can do that thing many times, on different data

each time. Many patents pretend that applying this principal to a

specific case makes an "invention".

using

a computer, a computer display and a telecommunications link between

the remote user's computer and the network web site,

This says they are using a server on a network.

the method

comprising the steps of:

* a) using the remote user's computer to establish a

telecommunications link to the network web site

This says that the user connects to the server over the network.

(That's the way one uses a server.)

wherein the

network web site comprises (i) a central host server coupled to a

communications network

This informs us that the server is on the net. (That is typical of

servers.)

for retrieving and transmitting the

pre-selected portion of the pre-recorded music product upon

request by a remote user

This repeats the general idea stated in the first two lines.

and (ii) a central storage device for

storing pre-selected portions of a plurality of different

pre-recorded music products;

They have decided to put a hard disk (or equivalent) in their computer

and store the music samples on that. Ever since around 1980, this has

been the normal way to store anything on a computer for rapid access.

Note how they emphasize once again the fact that they can store

more than one selection on this disk. Of course, every file system

will let you store more than one file.

* b) transmitting user identification data from the remote user's

computer to the central host server thereby allowing the central

host server to identify and track the user's progress through the

network web site;

This says that they keep track of who you are and what you access--a

common (though nasty) thing for web servers to do. I believe it was

common already in 1996.

* c) choosing at least one pre-selected portion of the pre-recorded

music products from the central host server;

In other words, the user clicks to say which link to follow. That is

typical for web servers; if they had found another way to do it, that

might have been an invention.

* d) receiving the chosen pre-selected portion of the pre-recorded

products; and

When you follow a link, your browser reads the contents.

This is typical behavior for a web browser.

* e) interactively previewing the received chosen pre-selected

portion of the pre-recorded music product.

This says that your browser plays the music for you. (That is what

many browsers do, when you follow a link to an audio file.)

Now you can see how they padded this claim to make it into a complex

idea: they included important aspects of what computers, networks, web

servers, and web browsers do. This complexity, together with two

lines which describe their own idea, add up to the so-called

"invention" for which they received the patent.

This example is typical of software patents. Even the occasional

patent whose idea is nontrivial has the same sort of added

complication.

Now look at a subsequent claim:

3. The method of [149]claim 1 wherein the central memory device

comprises a plurality of compact disc-read only memory (CD-ROMs).

What they are saying here is, "Even if you don't think that claim 1 is

really an invention, using CD-ROMs to store the data makes it an

invention for sure. An average system designer would never have

thought of that."

Now look at the next claim:

4. The method of [150]claim 1 wherein the central memory device

comprises a RAID array drive.

A RAID array is a group of disks set up to work like one big disk,

with the special feature that even if one of the disks in the array

has a failure and stops working, all the data is still available on

the other disks in the group. Such arrays have been commercially

available since long before 1996, and are a standard way of storing

data for high availability. But these brilliant inventors have

patented the use of a RAID array for this particular purpose.

Trivial as it is, this patent would not necessarily be found legally

invalid if there is a lawsuit about it. Not only the US Patent Office

but the courts as well tend to apply a very low standard when judging

whether a patent is "unobvious". This patent might pass muster,

according to them.

What's more, the courts are reluctant to overrule the Patent Office,

so there is a better chance of getting a patent overturned if you can

show a court prior art that the Patent Office did not consider. If

the courts are willing to entertain a higher standard in judging

unobviousness, it helps to save the prior art for them. Thus, the

proposals to "make the system work better" by providing the Patent

Office with a better database of prior art could instead make things

worse.

It is very hard to make a patent system behave reasonably; it is a

complex bureaucracy and tends to follow its structural imperatives

regardless of what it is "supposed" to do. The only practical way to

get rid of the many obvious patents on software features and

business practices is to get rid of all patents in those fields.

Fortunately, that would be no loss: the unobvious patents in the

software field do no good either.

The patent system is supposed, intended, to promote progress, and

those who benefit from software patents ask us to believe without

question that they do have that effect. But programmers' experience

is otherwise. New theoretical analysis shows that this is no paradox.

(See http://www.researchoninnovation.org/patent.pdf.)

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