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The Downside of Making Innovation Look Easy

Computer-implemented inventions are being denied patent protection at an alarming rate.

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Computers have become so easy to use that we take computer technology for granted. We forget the tremendous investment required to develop and manufacture computers. That ease of use results in our underestimating the patent-worthiness of computer innovations. Ironically, patents are intended to promote innovation — by denying patents we actually risk slowing the rate of computer innovation.

As a society, we love the idea of “easy.” The highest compliment a sports commentator can give an athlete is that they made their feat look easy. A well-known office supply chain sells a popular button that says “That was easy” when pressed. The holy grail of product design is ease of use. Let’s face it: We’re all busy, life is complicated, and easy equals better.

Ironically, the technology that makes computers look easy has worked too well. Inventors have made it seem that computers actually are easy to invent, and thus are not worthy of even being considered for patent protection.

Except when it doesn’t. The quest for ease of use of technology has made this pursuit its own worst enemy when it comes to making innovation commercially viable. On one hand, anything that can be done to make a computer easier to use is obviously better. And a lot has been done: The fundamental elements of a computer are becoming increasingly miniaturized and ubiquitous. In just a few decades, we have seen functions that once required a computer the size of an office cube to execute now performed by computer chips thinner than a single strand of hair. Today, even children too young to read now confidently use apps and connect to the Internet, thanks to features like touchscreens, graphical user interfaces and speech recognition.

That’s the good news. The flipside is that well-designed computer technology makes it easy for us to take it for granted. And therein lies the problem for inventors. We fail to appreciate the incredible complexity we no longer perceive but that is required to make this technology easy for us to use. Microelectronics, cryptography, data compression, analytics — these are just a few of the disciplines that require advanced skills and graduate degrees to master.

It is only going to get harder to make technology look easy as demand grows for products and features to be more powerful, sophisticated and miniaturized. It’s also expensive: Technology companies invest billions of dollars annually in research and development to make these advances possible. That is why IBM, Apple, Cisco, Google, Microsoft and Intel are among the companies that spend the most on research and development.

What is protecting these investments worth billions of dollars? Patents. The grant of exclusive rights to inventors for a limited time encourages investment in research and development. In exchange, inventors are required to publish descriptions of their patented inventions, which makes it less costly for others to create improvements to the inventions — it’s a virtuous circle for innovation, which we should encourage.

When it comes to computers, not all judges who evaluate innovations to determine patentability fully appreciate the technical investment required to make today’s computers so advanced. As a result, computer-implemented inventions (as they are sometimes called in the world of patents) are often found to be “abstract” and thus ineligible for patent protection. That is what happened to McRo patents directed to automatic three-dimensional lip-synchronization for animated characters, to Synopsys patents directed to automated electronic circuit logic design, and to Thales Visionix patents directed to helmet-mounted inertial object tracking.

Patent system abuse should be curbed. But not at the expense of being able to patent legitimate inventions that resulted from considerable investment of time and money.

Ironically, the technology that makes computers look easy has worked too well. Inventors have made it seem that computers actually are easy to invent and thus are not worthy of even being considered for patent protection. Consider, for example, how we take for granted the operating system user interfaces of our personal computing and mobile devices, new functionality added to word processors and spreadsheets, Bluetooth connectivity, Web searching and smartphone apps. The idea that creating computer innovations is so mundane that it should not even be eligible for consideration as patentable ignores the significant difficulty required for computer-implemented inventions.

Unfortunately, underestimating the massive effort behind today’s technology innovations is not the only issue. Growing public awareness of patent system abuse has encouraged courts to raise the bar on patentability. Together, these have made it too easy and too common for computer-implemented inventions to be dismissed as not even being eligible for evaluation.

Patent system abuse should be curbed. But it should not be curbed at the expense of being able to patent legitimate inventions that resulted from considerable investment of time and money.

Computer-implemented inventions are being denied patent protection at an alarming rate. The Court of Appeals for the Federal Circuit (the court that hears appeals from patent cases in all U.S. trial courts) has found ineligible the patents in all but one of the last few dozen or so patent cases it has considered. To make matters worse, inventors without patent protection are defenseless against having their work copied with just a few clicks.

We risk damaging one of this country’s most innovative and successful industries because our patent system now makes it too difficult to obtain and enforce patents for legitimate computer-implemented inventions, technology that looks so easy to create. We must find a way to course-correct before irreparable harm is done in order to continue to promote innovation and the creation of newer, better computer technology.


Manny W. Schecter is chief patent counsel and associate general counsel at IBM, leading the company’s worldwide intellectual property law organization on patent matters and advising on intellectual property strategy and policy. Schecter serves on the board of directors of the American Intellectual Property Law Association, the Intellectual Property Owners Association (IPO), the IPO Education Foundation (where he serves as the treasurer) and Allied Security Trust. Reach him @MannySchecter.

This article originally appeared on Recode.net.

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