"EXCITING," "uninteresting" and "not exciting" don't seem like technical
terms. But they show up a lot in United States patent application No.
20,050,160,457, titled "Annotating Programs for Automatic Summary Generation." It seems
to be about baseball. The inventors have apparently come up with software that
can detect the portions of a baseball broadcast that contain what they call
"excited speech," as well as hits (what I call "excited ball") and automatically
compile those portions into a highlights reel. If the patent is granted, after a review process that is likely to take three
years, it will be assigned to the inventors' employer, Microsoft. The staff of the United States Patent and Trademark Office has been deluged
with paperwork from Microsoft of late. It was one year ago that the company's
chairman, Bill Gates, announced plans to pick up the pace, raising its goal of
patent applications submitted annually to 3,000 from 2,000. The company is right
on target. It must feel like a bit of a stretch to come up with 60 fresh, nonobvious
patentable ideas week in, week out. Perhaps that is why this summer's crop
includes titles like "System and Method for Creating a Note Related to a Phone Call"
and "Adding and Removing White Space From a Document." I have not seen the software in use. But if I were in a position to make a
ruling, and even if I accepted the originality claim on its face, I would
process these swiftly: Rejected. Microsoft's other pending applications - 3,368 at last count - should receive
the same treatment. And while tidying up, let's also toss out the 3,955 patents
that Microsoft has already been issued. Perhaps that is going too far. Certainly, we should go through the lot and
reinstate the occasional invention embodied in hardware. But patent protection
for software? No. Not for Microsoft, nor for anyone else. Others share this conviction. "Abolishing software patents would be a very
good thing," says Daniel Ravicher, executive director of the Public Patent
Foundation, a nonprofit group in New York that challenges what it calls "wrongly
issued" patents. Mr. Ravicher, a patent lawyer himself, says he believes that
the current system actually impedes the advance of software technology, at the
same time that it works quite nicely to enrich patent holders. That's not what
the framers of the Constitution wanted, he said. Earlier this month, the European Parliament rejected a measure, nicknamed the
"software patent directive," that would have uniformly removed restrictions on
those patents among European Union members. All software published in the United States is protected by strong copyright
and trademark protection. Microsoft Excel, for example, cannot be copied, nor
can its association with Microsoft be removed. But a patent goes well beyond
this. It protects even the underlying concepts from being used by others - for
20 years. As recently as the 1970's, software developers relied solely upon copyrights
and trademarks to protect their work. This turned out rather well for Microsoft.
Had Dan Bricklin, the creator of VisiCalc, the spreadsheet that gave people a
reason to buy a personal computer, obtained a patent covering the program in
1979, Microsoft would not have been able to bring out Excel until 1999. Nor
would Word or PowerPoint have appeared if the companies that had brought out
predecessors obtained patent protection for their programs. Mr. Bricklin, who has started several software companies and defensively
acquired a few software patents along the way, says he, too, would cheer the
abolition of software patents, which he sees as the bane of small software
companies. "The number of patents you can run into with a small product is
immense," he said. As for Microsoft's aggressive accumulation in recent years,
he asked, "Isn't Microsoft the poster child of success without software
patents?" So why didn't Mr. Bricklin file for a patent for VisiCalc in 1979? Patents
for software alone were not an option then. He consulted a patent attorney who
said that the application would have to present the software within a machine
and that the odds were long that the ploy would succeed. The courts regarded
software as merely a collection of mathematical algorithms, tiny revelations of
nature's secrets - not as an invention, and thus not patentable. The legal environment changed not because of new legislation, but by
accident. One important ruling here and another there, and without anyone fully
realizing it, a new intellectual-property reality had evolved by the end of the
1980's. Now software could enjoy the extraordinary protection of a patent,
protection so powerful that Thomas Jefferson believed that it should be granted
in only a few select cases.