Stupid Patent of the Month
I was not the only one baffled and bewildered at the news that the U.S. Patent Office had awarded IBM a patent for “Out-of-office electronic mail messaging system“. Or, put another way, the auto-replies that users love to set on their mailboxes to inform all and sundry that they are unavailable because they are fishing/on holiday/too busy and cannot deal with email.
The issue came to light when the Electronic Frontier Foundation (EFF) nominated the patent as the “stupid patent of the month” and pointed out many reasons why this patent richly deserved the status. The method claimed is obvious and ignores many real-world examples exist prior to the date of application, including IBM’s own documentation about how the out-of-office feature works in Notes from 1998.
The Strange World of Software Patents
I know a bit about the strange world of software patents and the language beloved of patent lawyers. I ran a patent portfolio when I was at HP and have acted as an expert witness in major trials, including one when Google sued Microsoft in 2012 to allege that Exchange ActiveSync contravened a patent covering pager communications from 1986. Google did not win that case because their claims ran into the obstacle of “prior art”. In other words, the method claimed could be proven to be in use before the “priority date” of the patent.
The same problem exists for IBM. Their claim dates from January 13, 2010. For IBM to succeed in suing a competitor like Microsoft to ask for damages because products like Exchange and Outlook contain auto-reply functionality, they would have to prove that no one had ever used an auto-reply before that date.
That notion is laughable to anyone who has any knowledge of email history. Those sued could defend themselves easily by pointing to evidence of prior art to show that people used auto-replies before 2010. For instance, apart from IBM’s own documentation mentioned above, this example explains how to set up auto-replies with Outlook 2003. I think we can conclude that Microsoft shipped Outlook 2013 well before 2010!
As the EFF article pointed out, IBM’s claims in the patent included an arguably new idea in that an email system might notify users some days in advance of someone being out of the office. I guess the logic here is that if you know that someone is going to be away, you will hurry up and ask them to do something. But that hardly is a firm foundation for a patent.
In any case, when Ars Technica challenged IBM, Big Blue backed down and said that they had “decided to dedicate the patent to the public.” Whatever that means. Reading between the lines, it might be “our patent application processed screwed up here so we are withdrawing as gracefully as possible”. Anyone who has managed a patent portfolio for a major multinational will sympathize in some way with IBM, because we all know that portfolios hold a mixture of gems, so-so claims, and absolute dogs that are not worth the paper they are written on.
Patents Can Be Good
Don’t get me wrong. I like software patents and consider them a good thing if used properly to protect ideas that are truly new and innovative, like the one I co-authored in 1989 about a “Method and system for sorting and prioritizing electronic mail messages”. It is a long way from what we though about intelligent email sorting then to the kind of processing done for the Focused Inbox today. Even so, I bet that a good patent lawyer could make an argument that features like Clutter, Inbox Rules, and the Focused Inbox contravene that now very old patent. That’s the kind of thing that happens – old patents emerge and people “read” the claims made 30 years ago onto new technology, which does not seem right.
Multiple problems exist with the current patent system, including the length of time it takes the Patent Office to review an application (seven years for IBM’s autoreply patent – not an unknown period). Technology changes so rapidly today that it must be extremely difficult for patent examiners (who check the applications) to decide whether the claims made in an application have merit.
You might think that patent examiners might just use an internet search to investigate some of the ideas they look at. In this instance, a simple search would have killed IBM’s application stone dead quickly. Then again, given the questions that some technologists ask in online forums, I wonder whether they know how to use Google, Bing, or DuckDuckGo – or have we all become terribly lazy at checking facts before asking questions?
Follow Tony on Twitter @12Knocksinna.
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