Why aren't websites usually patented?
July 16, 2011 9:50 AM Subscribe
"I have an idea for a website." Why am I not patenting it?
People come up with ideas for sites, then they implement them, then there are all these competitors. How is that possible?
Years ago this site came out called Friendster. Then MySpace and other, similar sites came up and eventually Facebook took over. Now Google+ is trying to take over that area.
But they all have one core idea: the concept of "friending" people and creating a network of people who have agreed to share streams of information with each other.
Why didn't Friendster patent that when they first thought of it? Is there some legal reason that concept can't be patented?
Another example would be the concept of a dating site. Or a blogging platform. Or online maps like Mapquest, Google Maps, and now Bing maps.
Why is there ever more than one of any of those things? You'd think the first one to come up with it would patent it but somehow that doesn't tend to happen.
People come up with ideas for sites, then they implement them, then there are all these competitors. How is that possible?
Years ago this site came out called Friendster. Then MySpace and other, similar sites came up and eventually Facebook took over. Now Google+ is trying to take over that area.
But they all have one core idea: the concept of "friending" people and creating a network of people who have agreed to share streams of information with each other.
Why didn't Friendster patent that when they first thought of it? Is there some legal reason that concept can't be patented?
Another example would be the concept of a dating site. Or a blogging platform. Or online maps like Mapquest, Google Maps, and now Bing maps.
Why is there ever more than one of any of those things? You'd think the first one to come up with it would patent it but somehow that doesn't tend to happen.
Why didn't Friendster patent that when they first thought of it?
Apart from any legal reason, which is what you're most interested in, Friendster didn't pioneer the idea of "friends" on a social network site anyway. For example, LiveJournal, which according to Wikipedia was started in 1999 (three years before Friendster) makes extensive use of the "friends" concept. They may have even invented using "friends" the word to describe this group of people to whom you grant special access--I remember a lot of discussions about how "friends" was a bad choice later, as people did not use the LJ feature just to grant access to actual friends.
I'm not a lawyer, so I can't give you an actual legal explanation for why the first person to invent "friends", but reading this Bitlaw page on patent requirements makes me suspect that it is neither statutory nor non-obvious. Undoubtedly someone will be along soon with a real answer.
posted by Kutsuwamushi at 10:04 AM on July 16, 2011
Apart from any legal reason, which is what you're most interested in, Friendster didn't pioneer the idea of "friends" on a social network site anyway. For example, LiveJournal, which according to Wikipedia was started in 1999 (three years before Friendster) makes extensive use of the "friends" concept. They may have even invented using "friends" the word to describe this group of people to whom you grant special access--I remember a lot of discussions about how "friends" was a bad choice later, as people did not use the LJ feature just to grant access to actual friends.
I'm not a lawyer, so I can't give you an actual legal explanation for why the first person to invent "friends", but reading this Bitlaw page on patent requirements makes me suspect that it is neither statutory nor non-obvious. Undoubtedly someone will be along soon with a real answer.
posted by Kutsuwamushi at 10:04 AM on July 16, 2011
Best answer: Facebook currently owns all the friendster patents.
So I guess the answer to your questions is that they do patent them.
The reason that lawsuits don't happen between big companies very often is that most of these competing companies are sitting on a pile of patents relating to the technology, so there is kind of a 'mutually assured destruction' thing going on, which means that if facebook were to sue google, google would countersue for some other patent violation.
Software patents basically act as barriers to entry for smaller companies who don't have a huge patent portfolio, and they do get sued, a lot, and most of them just settle or buy a license -- for example the recent case of Lodsys suing huge numbers of iPhone developers.
Software patents are a huge, controversial issue going back to Amazon's one-click patent.
I think most programmers and probably companies would love to be rid of them entirely. They're just a huge legal expense to deal with, with not much benefit to anyone involved in the system.
posted by empath at 10:13 AM on July 16, 2011 [3 favorites]
So I guess the answer to your questions is that they do patent them.
The reason that lawsuits don't happen between big companies very often is that most of these competing companies are sitting on a pile of patents relating to the technology, so there is kind of a 'mutually assured destruction' thing going on, which means that if facebook were to sue google, google would countersue for some other patent violation.
Software patents basically act as barriers to entry for smaller companies who don't have a huge patent portfolio, and they do get sued, a lot, and most of them just settle or buy a license -- for example the recent case of Lodsys suing huge numbers of iPhone developers.
Software patents are a huge, controversial issue going back to Amazon's one-click patent.
I think most programmers and probably companies would love to be rid of them entirely. They're just a huge legal expense to deal with, with not much benefit to anyone involved in the system.
posted by empath at 10:13 AM on July 16, 2011 [3 favorites]
There was a recent askme about patenting business ideas which may help answer parts of your question.
posted by dfriedman at 10:27 AM on July 16, 2011
posted by dfriedman at 10:27 AM on July 16, 2011
In my opinion patents are over-used. Competition is very good and should be encouraged. Patents stifle competition and dramatically increase resource consumption by a parasitic, non-productive legal sector. Big companies are getting patents on the simplest ideas. That stifles competition and new technology. I believe USA is losing ground in technological advancement due to patent laws more stringent than other countries.
posted by nogero at 10:29 AM on July 16, 2011 [1 favorite]
posted by nogero at 10:29 AM on July 16, 2011 [1 favorite]
Best answer: Blackboard shook up the online learning/CMS world a while back by enforcing their patent to "technology used for internet-based education support systems and methods." An amazingly broad patent that was devastating to WebCT and other smaller ventures. So, lawsuits can wipe out the online competition when one organization holds the most important patent.
posted by parkerjackson at 10:36 AM on July 16, 2011
posted by parkerjackson at 10:36 AM on July 16, 2011
Best answer: (The question isn't "are patents a good thing?" The question is "given that patents exist, why are there so many competitors in new areas of technology?")
One reason is that a (strong, defensible) patent may not always be available. Just because you can squeak something through the Patent Office does not mean it will stand up to reexamination, a district court trial, and an appeal to the Federal Circuit. So rather than try to completely exclude your competition from the market with a patent you use it to extract a more modest license. Or you simply keep it as a potential litigation bargaining chip or as a salable asset in case of bankruptcy. Or maybe your competitors also have a key patent so rather than engage in mutually-assured destruction you strike a cross-licensing deal.
And even if you have a strong, defensible patent, it may take an eternity and a large fortune to enforce it. To give a worst-case scenario, consider the Festo case. It had three Federal Circuit appeals (one a major en banc appeal) and two Supreme Court cases. The litigation ran from 1988 to 2003. That's fifteen years. Think how much the technological landscape can change in that length of time. Even much more typical patent litigation can take about 5 years to run its course (about 3 years to a decision on the merits at the district level and 2 years for the appeal), cost multiple millions of dollars, and cause significant business disruptions.
Another problem: just getting a patent takes a long time. For business methods and e-commerce patents the average time to a patent is well over four years. If you have to appeal the decision of the examiner to the Board of Patent Appeals and Interferences (more and more common these days) then the pendency explodes. On average it takes over two years for the Board to make a decision, the backlog is so bad. So you're looking at over six years in many cases to get a patent. In that time your company can fail for unrelated reasons, leaving the patent to be picked up by a holding company, which will license it to all of your former competitors. In fact, that's the process by which a lot of so-called 'patent trolls' get their patents.
The bottom line is that a patent is not a license to print money or a golden ticket to a monopoly in the market. Businesses that invest in patents still have to develop viable business plans and deal with competitors.
posted by jedicus at 11:13 AM on July 16, 2011 [2 favorites]
One reason is that a (strong, defensible) patent may not always be available. Just because you can squeak something through the Patent Office does not mean it will stand up to reexamination, a district court trial, and an appeal to the Federal Circuit. So rather than try to completely exclude your competition from the market with a patent you use it to extract a more modest license. Or you simply keep it as a potential litigation bargaining chip or as a salable asset in case of bankruptcy. Or maybe your competitors also have a key patent so rather than engage in mutually-assured destruction you strike a cross-licensing deal.
And even if you have a strong, defensible patent, it may take an eternity and a large fortune to enforce it. To give a worst-case scenario, consider the Festo case. It had three Federal Circuit appeals (one a major en banc appeal) and two Supreme Court cases. The litigation ran from 1988 to 2003. That's fifteen years. Think how much the technological landscape can change in that length of time. Even much more typical patent litigation can take about 5 years to run its course (about 3 years to a decision on the merits at the district level and 2 years for the appeal), cost multiple millions of dollars, and cause significant business disruptions.
Another problem: just getting a patent takes a long time. For business methods and e-commerce patents the average time to a patent is well over four years. If you have to appeal the decision of the examiner to the Board of Patent Appeals and Interferences (more and more common these days) then the pendency explodes. On average it takes over two years for the Board to make a decision, the backlog is so bad. So you're looking at over six years in many cases to get a patent. In that time your company can fail for unrelated reasons, leaving the patent to be picked up by a holding company, which will license it to all of your former competitors. In fact, that's the process by which a lot of so-called 'patent trolls' get their patents.
The bottom line is that a patent is not a license to print money or a golden ticket to a monopoly in the market. Businesses that invest in patents still have to develop viable business plans and deal with competitors.
posted by jedicus at 11:13 AM on July 16, 2011 [2 favorites]
You can't patent an idea. Why not? Because the law says so. In order to be eligible for patent protection under US law, a thing must be a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof...". The raw idea is not enough to support a patent; you have to devise a new and useful means of turning that idea into a patent-eligible thing, like a process or a machine. There's tons of argument and litigation about where to draw the line between ideas (unpatentable) and processes and things (patentable), but the basic principle remains: you can't patent an idea. You patent the software that turns the idea into something real, or maybe the business method, but not the underlying idea. These questions are full of evolving controversy. If you want to understand the details (I don't), follow some of the links from that Wikipedia article.
posted by Corvid at 11:27 AM on July 16, 2011
posted by Corvid at 11:27 AM on July 16, 2011
Best answer: Related: App developers withdraw from US as patent fears reach 'tipping point'
posted by sharkfu at 11:48 AM on July 16, 2011
posted by sharkfu at 11:48 AM on July 16, 2011
Response by poster: > (The question isn't "are patents a good thing?" The question is "given that patents exist, why are there so many competitors in new areas of technology?")
Yes, that's the question.
> So I guess the answer to your questions is that they do patent them.
> The reason that lawsuits don't happen between big companies very often is that most of these competing companies are sitting on a pile of patents relating to the technology, so there is kind of a 'mutually assured destruction' thing going on
[...]
> Software patents basically act as barriers to entry for smaller companies...
Sounds like it.
> Related: App developers withdraw from US as patent fears reach 'tipping point'
Thanks for the link. That's very interesting.
So in some cases there might be a way around the barrier by only doing business outside U.S.
posted by eeby at 12:08 PM on July 16, 2011 [1 favorite]
Yes, that's the question.
> So I guess the answer to your questions is that they do patent them.
> The reason that lawsuits don't happen between big companies very often is that most of these competing companies are sitting on a pile of patents relating to the technology, so there is kind of a 'mutually assured destruction' thing going on
[...]
> Software patents basically act as barriers to entry for smaller companies...
Sounds like it.
> Related: App developers withdraw from US as patent fears reach 'tipping point'
Thanks for the link. That's very interesting.
So in some cases there might be a way around the barrier by only doing business outside U.S.
posted by eeby at 12:08 PM on July 16, 2011 [1 favorite]
Corvid, ideas are patented all the time, aren't they? Processes, such as one-click checkout, are indistinguishable from ideas. It might force a small layer of obfuscation onto the patent application, but practically speaking, ideas can be patented. You just have to word it the right way.
not a lawyer, would love to be proven wrong.
posted by jsturgill at 12:09 PM on July 16, 2011 [2 favorites]
not a lawyer, would love to be proven wrong.
posted by jsturgill at 12:09 PM on July 16, 2011 [2 favorites]
All patents are barriers to entry for everyone, except the person holding the patent. That's the point. They invented the process/product, and in exchange for sharing exactly how to do it with the world, they are granted a temporary monopoly on that specific idea. Others are then free to read the patent, learn from it, perhaps improve upon it and then patent the new idea.
jsturgill: if you read the amazon patent on one click shipping, you can see that it is sufficiently complicated and fleshed out.
So it's not obfuscated, but laid out in detail. And it starts out "a method or process" for $IDEA. Someone else could conceivably patent a different method or process for the same idea, provided it is sufficiently different, or is sufficiently improved upon.
In other words, I can't patent the idea of cars that fly. I actually have to design a specific flying car that is different from all the other flying cars.
posted by gjc at 1:22 PM on July 16, 2011 [1 favorite]
jsturgill: if you read the amazon patent on one click shipping, you can see that it is sufficiently complicated and fleshed out.
So it's not obfuscated, but laid out in detail. And it starts out "a method or process" for $IDEA. Someone else could conceivably patent a different method or process for the same idea, provided it is sufficiently different, or is sufficiently improved upon.
In other words, I can't patent the idea of cars that fly. I actually have to design a specific flying car that is different from all the other flying cars.
posted by gjc at 1:22 PM on July 16, 2011 [1 favorite]
The abstract of their application appears to specify the following things:
It happens on the internet.
There are servers involved and unique identifiers assigned.
It generates web pages to show the purchaser and interacts with Amazon's established billing and shipping system.
Those aren't really a "process" in any meaningful way--that is, they are obvious things. It still appears to me to be a patent on the idea of click once to purchase things, with enough padding to meet the minimum length requirement of the professor. Err, patent office.
Surely Amazon's lawsuits prohibiting others from creating a one-click checkout system aren't about their competitors accessing Amazon's billing system and warehouses! The web pages, algorithms, and backend technologies are/could be/may be completely different. The similarity is the idea.
posted by jsturgill at 4:47 PM on July 16, 2011 [1 favorite]
It happens on the internet.
There are servers involved and unique identifiers assigned.
It generates web pages to show the purchaser and interacts with Amazon's established billing and shipping system.
Those aren't really a "process" in any meaningful way--that is, they are obvious things. It still appears to me to be a patent on the idea of click once to purchase things, with enough padding to meet the minimum length requirement of the professor. Err, patent office.
Surely Amazon's lawsuits prohibiting others from creating a one-click checkout system aren't about their competitors accessing Amazon's billing system and warehouses! The web pages, algorithms, and backend technologies are/could be/may be completely different. The similarity is the idea.
posted by jsturgill at 4:47 PM on July 16, 2011 [1 favorite]
This thread is closed to new comments.
posted by empath at 10:03 AM on July 16, 2011 [2 favorites]