Commentary
Google Issued Patent For Doodles: What Was Patent Office Thinking?
- by Dave Morgan , Featured Contributor, March 24, 2011
The U.S. Patent & Trademark Office has granted Google Co-Founder Sergey Brin a patent for inventing the technique of putting event-driven doodles -- such as daily holiday references -- on web pages to cause people to click on those pages. Is this what qualifies for a patentable invention these days? I find it silly that our back-logged patent office is issuing such ridiculous patents.
I do believe that patents and other forms of intellectual property have an important place in society, helping to promote and protect true invention. However, I believe that issuing patents like this only serves to highlight how problematic the patent system has become. While I was trained as a lawyer a long time ago, and even litigated some intellectual property matters along the way, my analysis here is an entrepreneur, not a former lawyer. Here is why I find patents like this ridiculous and dangerous:
Innovation is not invention. Patents are supposed to protect invention, not just innovation. According to Wikipedia, an invention is a new composition, device or process. Innovation is an improvement on an existing composition, device or process. The practice of adding timely and relevant graphic elements to media pages generally, and computer-driven interfaces specifically, certainly predates the 2001 application date of this patent. At best, Google's Doodles were an innovation.
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Patent office can't -- and doesn't -- know about all prior art. Something can't be invented if it already exits. In a perfect world, the patent office will know of all related and prior work in the field: the "prior art." Assuming that each patent examiner knows everything related to every patent application he reviews is a pipe dream. It is not only a virtual impossibility. It is an actual impossibility.
Patent litigation costs are out-of-sight. The only way to fix things after patents have been issued is legal challenge and litigation. Since the legal costs to successfully challenge or defend patents now start in the millions of dollars, it means that this is becoming a world owned by large companies, investor-funded patent trolls, and law firms incented to litigate for a piece of the action.
Creates virtuous cycle of more silly applications and more silly patents. The more silly patents that are issued, the more will be filed. This is just basic human behavior at work. So, not only do we get more bad patents, we get a more congested patent review process, more delays and more mistakes.
Creates more patent trolls, more tax on innovation. The issuance of software patents over the past two decades had brought enormous ambiguity into what is an invention and what is just a new application of a previous technique. Patent trolls have exploited this, and their litigation amounts to a "tax" on companies operating in technology markets. More bad patents will only bring us more trolls.
What do you think? Do Google's Doodles deserve U.S. patent protection?
Love the article. You can't fault Google for applying for every patent they can get, but it is the job of the Patent Office to sift through and determine what qualifies as patentable.
I like the Doodles, but essentially they are a use of art to draw in users. That's been part of the basic print and broadcast ad for longer than any of us have been around, so there's nothing new or truly unique here. It's simply a twist on a common practice. I'm with Dave Morgan... that's patentable?
To be patentable an idea must be:
1. Useful
2. Novel and not obvious over prior art
3. Must be previously unknown and not used
The patent would seem to fail on items #2 and #3
Doodles are not new (people actually used to doodle on paper! ... Gasp!) and making them digital is obvious. Graffiti also attracts attention and is a form of doodle, in some cases, actually darn good art.
Google's combination of using "doodles" melded with their name is very creative and interesting and celebrates events. They "own" it in the public mind because they use it and do a great job with it. It simply doesn't need a patent, unless they plan on messing it up.
There is a fundamental structural problem in that a single examiner looks at an application. And he can only spend up to 20 hours studying it, making it nearly impossible to come to a reasonable conclusion.
I have also seen examiners cite wholly unrelated patents as prior art just because of one common phrase - obviously the result of a lazy search.
I know the Obama administration is actively working to improve the patent review process, but I have not yet seen any proposals that deal with the "single reviewer" problem. Ideally, dozens of experts could give their opinion before a patent is issued. That would be the best hope for identifying prior art.
Absurdity at the highest levels. Not unique, but absurd. Perhaps there should be a cost attached to nuisance applications by companies whose net profit over $1 mil or facimile thereof. Trolls need to back to the woods. Very Grimm.