from the so-why-get-it-in-the-first-place? dept
IBM basically tries to patent everything, no matter how stupid. The company has (no, really) been at the top of the patent recipient list in the United States for an astounding 24 straight years. Really. And, yes, sure, the company has done some innovative things and yes, Watson's pretty cool, but does anyone actually think IBM is the most innovative company around for the past two and a half decades? It gets tons of patents because IBM has an army of lawyers who just try to patent anything. Earlier this week, the EFF put out its regular Stupid Patent of the Month post, and it was about an incredibly stupid patent from IBM. The patent (US Patent 9,547,842) is for an out-of-office email messaging system.
You know, when you email someone and you get back a bounce that says the person is out of the office, and that they won't be reading emails (even though they probably are reading them anyway and probably will respond anyway, because, really, who goes off email these days?). Anyway, the application for this patent was filed in 2010, way, way, way after OOO messages were quite common. The one thing that might be considered different in this patent was that you could set it to tell people a few days earlier that you would be on vacation in a few days. But, as EFF pointed out, that's not particularly inventive or difficult for anyone to figure out and it certainly doesn't deserve a patent. As the EFF notes, going over the history of this patent demonstrates why the US Patent Office is so bad at this stuff. Rather than figuring what's actually obvious or in the prior art, it just looks at patents:
You might think that a patent examiner faced with a patent application on an out-of-office email system might look at some real out-of-office email solutions. But the examiner considered only patents and patent applications. The Patent Office spent years going back-and-forth on whether IBM’s claims where new compared to a particular 2006 patent application. But it never considered any of the many, many, existing real-world systems that pre-dated IBM’s application.
To take just one example, the Patent Office never considered this detailed specification from 1998 (PDF) from IBM describing the out-of-office agent in Notes. Nor did it consider other well-known email features like scheduling and signatures. If the Patent Office had taken a peek at the real world, and applied a modicum of common-sense, it would have quickly rejected IBM’s claims.
EFF also notes that the patent should have easily failed under the Alice standard, but IBM tap danced around it:
In Alice, the Supreme Court ruled that an abstract idea does not become eligible for a patent simply because it is implemented on a generic computer. That decision came down in June 2014, so the Patent Office had plenty of time to apply it to the application that led to this patent. If it had, it likely would have rejected the claims. The ’842 Patent goes out of its way to make clear that its method can be implemented on a generic computer. The final three columns of the patent recite at length how its claims can be implemented in any programming language on essentially any kind of hardware.
At one point, the examiner did reject some of the application’s claims under Section 101 of the Patent Act (which is the statute the Alice decision applies). But IBM overcame the rejection simply by arguing that the patent’s method was implemented in computer hardware. In January 2013, IBM noted that “it was agreed [between IBM and the patent examiner] that the rejection ... under 35 U.S.C. § 101 could be overcome by reciting that a hardware storage device stores computer readable instructions or program code.” Even if that was a reasonable response in 2013, it certainly was not after Alice. Yet the Patent Office never revisited the issue. We have submitted multiple rounds of comments (1, 2, 3, and 4) to the Patent Office urging it to be more diligent in applying Alice.
So, normally, we just repost the EFF's Stupid Patent of the Month posts here on Techdirt, and we even had this one lined up... but a funny thing happened on the way to the posting. Over at Ars Technica, Joe Mullin reached out to IBM to ask them the reporter's equivalent of "WTF?" and got back this response:
Asked today about EFF's criticisms of the patent, an IBM spokesperson said that "IBM has decided to dedicate the patent to the public."
Got that? So IBM spent tons of money not just applying for this patent, but arguing back and forth with the PTO for years over why it truly deserved this silly patent... and then it got it at the beginning of this year. And less than two months after receiving the patent, when the EFF publicly shames IBM over the patent, the company then says "oh, hey, we dedicate it to the public." That makes sense.