Once you’ve carried out your contextual inquiries, identified the customers’ terminology, and done some participatory design sessions, you design the interaction models and create workflows and some medium-fidelity wireframes. Of course, you do some formative testing with a lo-fi prototype and find that your design does well. Really well, in fact.
You’re elated. Just a couple of optimizations to the workflows and some terminology tweaks, and you’re ready to apply a visual design. You hand off your detailed wireframes and functional specification to the visual designers and development group, feeling satisfied that you’ve done a great job of meeting users’ needs and satisfying your stakeholders.
Fast-forward a year and a half. You receive a notice from a law firm. You’re being subpoenaed. It turns out the now-successful startup is being sued, because certain aspects of the application’s user interface—your design—have “infringed” on several patents that purport to have “invented” the process of managing large groups of files and publishing them to various locations via the Internet.
Why Should You Care About the Chaos in the US Patent System?
Could this happen to you? Absolutely. How likely is it to happen to you? Probably less likely than the chance you’ll hear your favorite song on the radio within the next year, but much more likely than the chance you’ll win the lottery.
The current US patent system—in combination with the litigious nature of many high-tech companies—make it likely that, somewhere down the road, something you design might incur the wrath of a patent troll.
The sad fact is that companies often file for and the US government actually grants patents for user interface and interaction design “innovations” that are either strikingly obvious or have appeared before in other systems—that is, when prior art exists, as someone in the field of intellectual property would say. This means, as user experience practitioners, we are at risk of litigation every time we design an application. Each time we fire up Visio or Photoshop, create a new design, then put it out into the world, there’s a good chance we’re infringing on someone’s patent.
In a perfect or just world, the government wouldn’t grant patents for the obvious or overly broad patents in the first place. But we’re not living in an ideal world, and the government often grants dubious patents. When they do, the patent holder then has the legal right to sue companies they feel are infringing on their patents.
Unfortunately, in this situation, it is incumbent on the infringing company to establish that they are, in fact, not infringing on the patent or the court should invalidate the patent because it is vague, based on prior art, or overly broad. This is generally much harder to prove than it is to defend a patent. Because the US patent system so strongly favors the patent holder, once the government grants a patent, the patent holder generally need not continually prove the validity of the patent.
How have things devolved to this sorry state?
A Quick History of the US Patent System
Since the beginning of the industrial revolution, nations have afforded some measure of protection for inventors’ technology, methods, and processes. English kings granted patents to inventors as early as the 1500s. In the United States, the law establishing a patent system appears in Article 8 of the United States Constitution. The actual text reads:
Congress shall have power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The U.S. government established the United States Patent and Trademark Office (USPTO) in 1790. It issued the first patent, incidentally, to an inventor named Samuel Hopkins, for an invention that improved “the making of Pot ash and Pearl ash by a new Apparatus and Process.” The USPTO has issued over seven million patents since its inception.
In its first two centuries, the USPTO generally functioned as intended—that is, it provided inventors with legal protection and recourse, so they could capitalize on their inventions without fear of others copying or appropriating their work.
The patent system in the United States was generally effective until the pace of technological innovation began to accelerate in the late 1970s and 80s. As software development companies created and marketed more and more commercial software, they naturally began submitting their creations to the USPTO.
Whether software should be patentable at all has been hotly debated. A number of individuals and organizations have made the case that, because software is simply a set of commands in a computer language, it should not be patentable, and that allowing software patents stifles innovation. Others have argued that software functionality shouldn’t be patentable, but the actual algorithms developers employ to implement the functionality an application provides should be. In point of fact, the USPTO makes such arguments academic, because it has issued thousands of software patents, including patents for algorithms, functionality, and user interface designs.
The controversy surrounding the issuance of software patents had already led many to begin questioning the US patent system in the early 1990s. Then the US patent system seriously went off the rails in the late 1990s when Congress reduced funding for the USPTO and required the USPTO to submit 10% of all revenues from patent filing and issuance fees to the US Treasury—effectively taxing the USPTO—while at the same time, the pace of filings increased. A perfect storm for the patent system. So like any good self-perpetuating bureaucracy, the leaders at the patent office decided to make up for the funding gap by increasing their reliance on fees from patent applications and issuances.
Not surprisingly, this created a strong incentive within the USPTO to accept more patent applications. This has increased the workload on individual patent examiners. In past decades, a patent examiner would carry out a fairly comprehensive, independent search for prior art when evaluating a patent application—not simply rely on the applicant to describe and report any prior art in the application. Searching for prior art obviously takes time. Today, it is less and less likely that a patent examiner will conduct anything more than a cursory search for prior art.
By the beginning of this decade, the USPTO was essentially granting patents to anyone who asked nicely. The decline of the US patent system and the USPTO is almost laughable. Some ridiculous and controversial patents include the following examples:
- Some clueless patent examiner awarded US Patent 5,443,036, “Method of exercising a cat,” to an “inventor” who claimed that having a cat chase the beam from a laser pointer was a patentable process.
- In 2005, the USPTO issued US Patent 6,960,975 for a “Space vehicle propelled by the pressure of inflationary vacuum state.” Inspection of this patent by physicists outside the USPTO called attention to the fact that the patent essentially described an antigravity machine, a physical impossibility.
- In 2002, the father of a five-year-old boy, acting as the boy’s patent attorney, filed for and was awarded US Patent 6,368,227 for a method of swinging on a swing sideways. Presumably, all other kindergartners now owe this child royalty payments.
Imagine if the patent office had acted like this in the early 1900s. What if an automobile manufacturer had successfully patented the user interface elements of a car? The consequence would have been that no other manufacturers could create a car with the familiar configuration of steering wheel, gas pedal, clutch, and shifter. How Rube Goldbergesque would our cars be today?
While these outlandish examples are entertaining, they call attention to serious issues. When the government issues patents that are overly broad or for that which is obvious, they can stifle innovation—because either the patents have chilling effects or, when other inventors create things of value, holders of patents for the obvious or overly broad patents have the legal right to tie up the inventors in civil court.