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+<!-- Parent-Version: 1.79 -->
+
+<title>The Anatomy of a Trivial Patent - GNU project - Free Software Foundation</title>
+
+<!--#include virtual="/philosophy/po/trivial-patent.translist" -->
+<!--#include virtual="/server/banner.html" -->
+
+<h2>The Anatomy of a Trivial Patent</h2>
+
+<p>by <a href="http://www.stallman.org/"><strong>Richard Stallman</strong></a></p>
+
+<p>Programmers are well aware that many of the existing software patents
+cover laughably obvious ideas. Yet the patent system's defenders often
+argue that these ideas are nontrivial, obvious only in hindsight. And
+it is surprisingly difficult to defeat them in debate. Why is that?</p>
+
+<p>One reason is that any idea can be made to look complex when
+analyzed to death. Another reason is that these trivial ideas often look
+quite complex as described in the patents themselves. The patent
+system's defenders can point to the complex description and say,
+&ldquo;How can anything this complex be obvious?&rdquo;</p>
+
+<p>I will use an example to show you how. Here's claim number one
+from US patent number 5,963,916, applied for in October 1996:</p>
+
+<blockquote>
+<p>1. A method for enabling a remote user to preview a portion of a
+pre-recorded music product from a network web site containing
+pre-selected portions of different pre-recorded music products, using
+a computer, a computer display and a telecommunications link between
+the remote user's computer and the network web site, the method
+comprising the steps of:</p>
+
+<ul>
+<li>a) using the remote user's computer to establish a telecommunications
+link to the network web site wherein the network web site comprises
+(i) a central host server coupled to a communications network for
+retrieving and transmitting the pre-selected portion of the
+pre-recorded music product upon request by a remote user and (ii) a
+central storage device for storing pre-selected portions of a
+plurality of different pre-recorded music products;</li>
+</ul>
+
+<ul>
+<li>b) transmitting user identification data from the remote user's
+computer to the central host server thereby allowing the central host
+server to identify and track the user's progress through the network
+web site;</li>
+</ul>
+
+<ul>
+<li>c) choosing at least one pre-selected portion of the pre-recorded
+music products from the central host server;</li>
+</ul>
+
+<ul>
+<li>d) receiving the chosen pre-selected portion of the pre-recorded
+products; and</li>
+</ul>
+
+<ul>
+<li>e) interactively previewing the received chosen pre-selected portion
+of the pre-recorded music product.</li>
+</ul>
+</blockquote>
+
+<p>That sure looks like a complex system, right? Surely it took a real
+clever guy to think of this? No, but it took cleverness to make it seem
+so complex. Let's analyze where the complexity comes from:</p>
+
+<blockquote>
+<p>1. A method for enabling a remote user to preview a portion of a
+pre-recorded music product from a network web site containing
+pre-selected portions</p>
+</blockquote>
+
+<p>That states the principal part of their idea. They put selections
+from certain pieces of music on a server so a user can listen to
+them.</p>
+
+<blockquote>
+<p>of different pre-recorded music products,</p>
+</blockquote>
+
+<p>This emphasizes their server stores selections from more than one
+piece of music.</p>
+
+<p>It is a basic principle of computer science that if a computer can do
+a thing once, it can do that thing many times, on different data each
+time. Many patents pretend that applying this principle to a specific
+case makes an &ldquo;invention&rdquo;.</p>
+
+<blockquote>
+<p>using a computer, a computer display and a telecommunications
+link between the remote user's computer and the network web
+site,</p>
+</blockquote>
+
+<p>This says they are using a server on a network.</p>
+
+<blockquote>
+<p>the method comprising the steps of:</p>
+<p>a) using the remote user's computer to establish a telecommunications link to the network web site</p>
+</blockquote>
+
+<p>This says that the user connects to the server over the network.
+(That's the way one uses a server.)</p>
+
+<blockquote>
+<p>wherein the network web site comprises (i) a central host server
+coupled to a communications network</p>
+</blockquote>
+
+<p>This informs us that the server is on the net. (That is typical of
+servers.)</p>
+
+<blockquote>
+<p>for retrieving and transmitting the pre-selected portion of the
+pre-recorded music product upon request by a remote user</p>
+</blockquote>
+
+<p>This repeats the general idea stated in the first two lines.</p>
+
+<blockquote>
+<p>and (ii) a central storage device for storing pre-selected
+portions of a plurality of different pre-recorded music
+products;</p>
+</blockquote>
+
+<p>They have decided to put a hard disk (or equivalent) in their
+computer and store the music samples on that. Ever since around 1980,
+this has been the normal way to store anything on a computer for rapid
+access.</p>
+
+<p>Note how they emphasize once again the fact that they can store
+more than one selection on this disk. Of course, every file system
+will let you store more than one file.</p>
+
+<blockquote>
+<p>b) transmitting user identification data from the remote
+user's computer to the central host server thereby allowing the
+central host server to identify and track the user's progress through
+the network web site;</p>
+</blockquote>
+
+<p>This says that they keep track of who you are and what you
+access&mdash;a common (though nasty) thing for web servers to do. I
+believe it was common already in 1996.</p>
+
+<blockquote>
+<p>c) choosing at least one pre-selected portion of the
+pre-recorded music products from the central host server;</p>
+</blockquote>
+
+<p>In other words, the user clicks to say which link to follow. That
+is typical for web servers; if they had found another way to do it,
+that might have been an invention.</p>
+
+<blockquote>
+<p>d) receiving the chosen pre-selected portion of the
+pre-recorded products; and</p>
+</blockquote>
+
+<p>When you follow a link, your browser reads the contents. This is
+typical behavior for a web browser.</p>
+
+<blockquote>
+<p>e) interactively previewing the received chosen pre-selected
+portion of the pre-recorded music product.</p>
+</blockquote>
+
+<p>This says that your browser plays the music for you. (That is what
+many browsers do, when you follow a link to an audio file.)</p>
+
+<p>Now you see how they padded this claim to make it into a complex
+idea: they combined their own idea (stated in two lines of text) with
+important aspects of what computers, networks, web servers, and web
+browsers do. This adds up to the so-called invention
+for which they received the patent.</p>
+
+<p>This example is typical of software patents. Even the occasional
+patent whose idea is nontrivial has the same sort of added
+complication.</p>
+
+<p>Now look at a subsequent claim:</p>
+
+<blockquote>
+<p>3. The method of claim 1 wherein the central memory device
+comprises a plurality of compact disc-read only memory
+(CD-ROMs).</p>
+</blockquote>
+
+<p>What they are saying here is, &ldquo;Even if you don't think that
+claim 1 is really an invention, using CD-ROMs to store the data makes
+it an invention for sure. An average system designer would never have
+thought of storing data on a CD.&rdquo;</p>
+
+<p>Now look at the next claim:</p>
+
+<blockquote>
+<p>4. The method of claim 1 wherein the central memory device
+comprises a RAID array drive.</p>
+</blockquote>
+
+<p>A RAID array is a group of disks set up to work like one big disk,
+with the special feature that, even if one of the disks in the array
+has a failure and stops working, all the data are still available on
+the other disks in the group. Such arrays have been commercially
+available since long before 1996, and are a standard way of storing
+data for high availability. But these brilliant inventors have
+patented the use of a RAID array for this particular purpose.</p>
+
+<p>Trivial as it is, this patent would not necessarily be found
+legally invalid if there is a lawsuit about it. Not only the US
+Patent Office but the courts as well tend to apply a very low standard
+when judging whether a patent is &ldquo;unobvious&rdquo;. This patent
+might pass muster, according to them.</p>
+
+<p>What's more, the courts are reluctant to overrule the Patent
+Office, so there is a better chance of getting a patent overturned if
+you can show a court prior art that the Patent Office did not
+consider. If the courts are willing to entertain a higher standard in
+judging unobviousness, it helps to save the prior art for them. Thus,
+the proposals to &ldquo;make the system work better&rdquo; by
+providing the Patent Office with a better database of prior art could
+instead make things worse.</p>
+
+<p>It is very hard to make a patent system behave reasonably; it is a
+complex bureaucracy and tends to follow its structural imperatives
+regardless of what it is &ldquo;supposed&rdquo; to do. The only
+practical way to get rid of the many obvious patents on software
+features and business practices is to get rid of all patents in those
+fields. Fortunately, that would be no loss: the unobvious patents in
+the software field do no good either. What software patents do is put
+software developers and users under threat.</p>
+
+<p>The patent system is supposed, intended, to promote progress, and those who
+benefit from software patents ask us to believe without question that they do
+have that effect. But programmers' experience shows otherwise. New theoretical
+analysis shows that this is no paradox. (See <a
+href="https://web.archive.org/web/20000815064858/http://www.researchoninnovation.org/patent.pdf">researchoninnovation.org/patent.pdf</a>
+on web.archive.org.) There is no reason why society should expose software
+developers and users to the danger of software patents.</p>
+
+</div><!-- for id="content", starts in the include above -->
+
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+<div class="unprintable">
+
+<p>Please send general FSF &amp; GNU inquiries to
+<a href="mailto:gnu@gnu.org">&lt;gnu@gnu.org&gt;</a>.
+There are also <a href="/contact/">other ways to contact</a>
+the FSF. Broken links and other corrections or suggestions can be sent
+to <a href="mailto:webmasters@gnu.org">&lt;webmasters@gnu.org&gt;</a>.</p>
+
+<p><!-- TRANSLATORS: Ignore the original text in this paragraph,
+ replace it with the translation of these two:
+
+ We work hard and do our best to provide accurate, good quality
+ translations. However, we are not exempt from imperfection.
+ Please send your comments and general suggestions in this regard
+ to <a href="mailto:web-translators@gnu.org">
+ &lt;web-translators@gnu.org&gt;</a>.</p>
+
+ <p>For information on coordinating and submitting translations of
+ our web pages, see <a
+ href="/server/standards/README.translations.html">Translations
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+Please see the <a
+href="/server/standards/README.translations.html">Translations
+README</a> for information on coordinating and submitting translations
+of this article.</p>
+</div>
+
+<p>Copyright &copy; 2006, 2016 Richard Stallman</p>
+
+<p>This page is licensed under a <a rel="license"
+href="http://creativecommons.org/licenses/by-nd/4.0/">Creative
+Commons Attribution-NoDerivatives 4.0 International License</a>.</p>
+
+<!--#include virtual="/server/bottom-notes.html" -->
+
+<p class="unprintable">Updated:
+<!-- timestamp start -->
+$Date: 2016/11/18 06:31:39 $
+<!-- timestamp end -->
+</p>
+</div>
+</div>
+</body>
+</html>