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Has the US patent system gone too far?

Reformers push to limit what is protected.

By James TurnerCorrespondent for The Christian Science Monitor / March 12, 2009

When Samuel Hopkins came up with a method for improving the production of potash, it was probably just the kind of invention that President George Washington had in mind when he created the US patent system. Hopkins, who in 1790 received the first American patent ever issued, had discovered a way to increase the production of a critical resource used to make glass, soap, and soil fertilizer.

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It’s unclear, however, how Washington would feel about America’s 6,368,227th patent.

Issued to Steven Olson, it protects a “method of swinging on a swing ... in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other.”

To critics of the current US Patent and Trademark Office (PTO), this kind of patent demonstrates everything that’s wrong with the patent system today.

“We have too many patents being granted,” according to Daniel Ravicher, who is the Legal Director for the Software Freedom Law Center. “There still remains this belief that the more patents we have, the better society is. A more sophisticated and reasonable belief is that there have to be some patents, but we need to assure that they are legitimately worthy.”

Traditionally, patents were only granted on tangible things, such as physical devices and chemical processes. But a series of court rulings in the 1980s opened the door to patents on more abstract processes, such as business plans and software code.

They also lowered the standards used to approve patents, says Mr. Ravicher. What followed were a flood of patents, covering everything from the idea of buying products online with a single mouse click (Amazon owns that one) to the aforementioned tree-swing patent.

As long as large corporations held the patents, things remained fairly peaceful. There has always been a kind of uneasy “mutually assured destruction” standoff among giants such as IBM and Microsoft, each holding patents that could be used against the other.

But as certain high-tech firms failed, many of their patents were acquired by intellectual-property holding companies, whose only business was to use these patents to make money. In other cases, independent inventors have patented what some consider blatantly obvious ideas.

Since these so-called “patent trolls” don’t produce anything themselves, they have nothing to be countersued over.

Consider the case of Cygnus Systems, who sued Google, Apple, and Microsoft in late 2008. Its patent, which Cygnus applied for in 1998, deals with the common software feature of displaying a thumbnail image of a document stored on a computer. Critics of the Cygnus patent have found numerous examples they claim represent prior art (examples of the technology that existed before the patent), some dating back into the 1980s. But the patent was granted, and is now being used to threaten some of the largest corporations in the world with expensive lawsuits.