In January 2017 the United States Patent Office granted a patent application lodged seven years previously by IBM for an Out-of-Office email notification system. Seven weeks later IBM formally disclaimed the patent. What does this say about software patents?
We might never have known about this ludicrous situation - and IBM might not have decided to "dedicate the patent to the public" - if it hadn't been nominated as Stupid Patent of the Month by Daniel Nazer of the Electronic Frontier Foundation.
Nazer, described in his EEF bio as "Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents" reported that the Out-of-Office email patent, applied for in 2010 (the '842 patent), was granted to IBM on January 17, 2017. But whereas a patent is supposed to be awarded to novel and non-obvious technology, he points out that out-of-office emails were already commonplace decades before. He argues:
The ’842 Patent describes technology that would have been stupefyingly mundane to a 2010 reader. A user inputs “availability data” such as a “start date, an end date and at least one availability indicator message.” The system then uses this data to send out-of-office messages. The only arguably new feature it claims is automatically notifying correspondents a few days before a vacation so that they can prepare in advance for a coworker’s absence. From a technological perspective, this is a trivial change to existing systems. Indeed, it is like asking for a patent on the idea of sending a postcard, not from a vacation, but to let someone know you will go on a vacation.
On I Programmer we have previously pointed out patents that have been awarded because the Patent Office lacks the expertise to understand the essential points of a software "invention" but if you inspect the document compiled by the EEF covering the entire history of this patent you discover that the Patent Office did seem to understand that out-of-office email was far from revolutionary and did deny claims made in the application. However, IBM kept coming back with revised claims, including that the system was implemented in computer hardware. The reason that it took seven years from start to finish wasn't just that USPTO took a long while getting around to it but rather that it went back and forth for years.
As Nazer points out however, the Patent Office, patently omitted to consider prior art, contenting itself with reference to just one other patent. This patent for a "Method to facilitate sender notification of out-of-office status of e-mail addressee" was applied for by Susan Keohane in 2006 and granted in 2008 - and so suffers from the same problem of being just an embellishment on a facility that had been available from at least 1988.
the Patent Office does a terrible job of finding and considering real-world evidence when reviewing patents. In fact, it seems to operate in an alternative universe where patents themselves provide the only evidence of the state of the art in software.
The fact that, even after all the years spent on the protracted process of gaining this patent, IBM then disclaimed it seems to indicated a degree of embarressment at being granted a patent for technology that is so mundane and taken-for-granted. It is also in IBM's best interests not to have it - imagine having to enforce this patent!
Disclaiming this patent doesn't mean IBM has lost interest in patents. In 2016 it was awarded over 8000 patent grants, breaking its own previous record. It also proudly boats that it has headed the US Patent List for the number of patents filled for the 24th consecutive year.
Shedding patent '842 may just be in order no to contminate its current patent applications with the suggestion that they could be refuted by evidence that others have come up with the same ideas.
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