This shows the folly.

The patent application includes these things called claims. Claims are what determine if someone else infringes on the patent (“invention”). Claims are very broad descriptions with almost no detail of an actual (software) product. Claims, despite this lack of detail and extreme broadness, are what officially define the “invention”.

The patent also includes a section where you describe the “invention” in more detail. Here you outline a more specific embodiment of the invention that is to include all the general features covered by the claims. Some patent supporters even claim that it is this section where you “teach society” how to make the invention and this is what justifies the 20 year monopoly. [Never mind that many would not pay $100 for this “teaching”.]

The problem is that you can have a patent author like Domino’s with a horribly buggy and inferior implementation get credit and coverage over a great many other implementations in the marketplace that are many times better and differ significantly in details.

Domino’s filed the patent in a hurry before they had a system that worked. Other groups worked on systems that would work. Now we give Domino’s (and no one else) control over everyone else that wants to add this functionality. We even allow Domino’s to forbid anyone else from creating that feature for their customers, even if the other people had a quality version of the feature almost out the door just as Domino’s wrote up their hasty work of art (POS) to get the very very broad 20 year government monopoly subsidy. The USPTO gives 100% control over a broad class of inventions for 20 years to the first crap implementation to ring their doorbell. The USPTO declares that all of that work (perhaps started even before Domino’s got the idea for the patent) from everyone else can only now be used by that single patent holder, Domino’s.

In fact, we could even argue that the USPTO and the law they support is so messed up that Domino’s would be crazy not to sacrifice quality and lack of understanding in order to beat everyone else to the doorbell so they could have control over the use of what all the others were diligently creating. I mean, why spend a year (or more, if necessary) to try and resolve the myriad of difficult design, logistics, and implementation issues that crop up to build the best service/product possible when you can gain control over everyone else’s rights to use such a service/product by being the first to write up the broad outline of the “invention”.

This failure is not unique to Domino’s. The USPTO always gives 100% credit for 20 long years to the one that rushes in the first outline of any particular solution. Never mind that over a 20 year period there is plenty of room to rederive this invention or improve the details of this broad class of inventions 10 times over if everyone could participate (and likely the patent holder would contribute but a tiny part of those improvements). All control is still bestowed on the first doorbell ringer.

This is our great American patent system at work: rewarding …ummmm… well, the article already covered what was being rewarded. Boys and girls, if this doesn’t seem to make any sense from a fairness point of view or from an analysis of what helps society and the industry point of view, don’t worry, a great many software developers share your frustrations. No one likes to have their hard work declared illegal on account of a foolish, broken, and unfair law.

Just look at how this lawyer called someone else’s open source creation the property of IBM http://blog.lawdeveloper.com/2010/04/07/why-do-people-think-open-source-software-is-special/ :

“This is just another excuse for anti-patent zealots to complain about not being able to steal IBM’s property and use it to compete against IBM.”

We are “anti-patent zealots” for objecting to this disgraceful law!

This professional of the law (the one just quoted)* finds it acceptable to call everyone’s implementation of a system the property of [fill patent holder name here, eg, Domino’s] because that patent holder decided to write a 5 mile high outline of a product before others had finished their products, and that patent holder decided to use that description to exploit the broken patent law so they would be able to make lots of money off others’ work and to control just who would be allowed to compete against them for 20 years.

Not all patents are entire garbage, but, to take one example, the quality of much mathematics published by many professionals and amateurs is of much superior quality and difficulty as what we find in these patents, yet mathematicians get no patent monopolies. Thankfully, mathematics has been spared. It looks like businesses might also be spared after the Bilski ruling. Neither business owners nor mathematicians need patents to create products, and they don’t want other people interfering to add (monopoly) sludge, neither to their wheels of progress nor to their freedoms to create. This desire to be free of crud is just as true for the vast majority of software developers.

Patents for great ideas will slow down progress because that will be great ideas many others won’t be able to have and exploit over the next 20 years. [And great ideas are very valuable to society.] There are many geniuses out there. It makes no sense to mock all of them in order to exalt one above them all for 20 years in some area. Especially not when the one being exalted is but the first one to rush in their outline into the USPTO’s office. Surely, there are many proven ways to encourage further innovation (assuming we didn’t have enough) without having to hand-cuff world + dog for not winning the lousy race to the USPTO office.

[*]: Don’t confuse the above lawyer Stephen with the Stephen (also a lawyer) who posts on againstmonopoly.com