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IP, Patent

What Is An Invention? The Google Doodle Patent As An Example

The recent uproar about the Google “Doodles” patent has again raised the question about what, exactly, is allowed to become a patented invention.  A fundamental misunderstanding is that inventors obtain patents for “ideas” or “concepts.”

Mike Masnick falls into this trap, recently when discussing the aforementioned patent:

Yes, the concept of Google Doodles is now patented.

Via Patent System Gone Mad: Google Doodles Is Now Patented (emphasis mine)

Later, in the comments, Mike berates a reader for daring to suggest that Sergey Brin‘s invention is actually a proper subject of patent protection:

But the real issue here is that, no, under no circumstances can anyone think that changing logos based on events to attract attention should be “patentable.” It’s a marketing strategy. Patenting marketing strategies makes no sense if you’re even remotely intellectually honest.

Of course, as I’ve maintained, you cannot patent abstract concepts, and a “marketing strategy” is certainly something that, in itself, could fall into the abstract category.  But the reader correctly explains the claimed invention, to no avail, as Mike again responds (with reader comment in italics):

The invention is not a different logo. It’s a system that alters the logo by event, with one of the stated purposes being that it increases brand relations. I’m sure Google ran A/B studies proving that it’s effective. You can’t tell the difference, because again, you’re unqualified.

Again, that’s NOT an invention. That’s a marketing tactic. It should not be patentable. That anyone would defend this as patentable suggests someone who’s so tied up in the patent system as to not recognize the simple ridiculousness of what he’s defending.

So, I guess I shouldn’t expect an intelligent response from Mike, since he would probably count me as someone who can’t plainly see that the patent is ridiculous.  Look, even I think it’s absolutely insane that I’ve written two articles now discussing this patent. But it’s not ridiculous that the patent was allowed.  What’s ridiculous is that the patent is so devoid of commercial value that it shouldn’t have been pursued in the first place.

First, as to what the heck was actually patented, it’s plainly not a marketing tactic (although it’s is useful to deploy as a marketing tactic).  The patent (US 7912915) claims:

A non-transitory computer-readable medium that stores instructions executable by one or more processors to perform a method …

STOP. What abstract marketing tactics are you aware of that consist of a “computer-readable medium that stores instructions”? The invention described is specifically deployed as a set of executable instructions performed by a computer.  The same claim also specifies:

instructions for creating a special event logo by modifying a standard company logo for a special event, where the instructions for creating the special event logo includes instructions for modifying the standard company logo with one or more animated images

In other words, the stored instructions must include the instructions described above. The patent doesn’t claim the idea of modifying a company logo, it claims an application that combines instructions for modifying the logo with other instructions for things like linking the modified logo to information. Given that Google frequently commissions artists to create its modified logos, this patent may not even accurately describe Google’s own implementation.

The important takeaway, however, is that Google’s patent covers a specific implementation of a software application, not the general idea of just “doing” something.  For an example of the latter, take a look at what Google originally tried to claim as the invention (full file history also embedded in my original post):

18. A method for enticing users to access a web page, comprising:
modifying a standard company logo for a special event to create a special event logo;
associating one or more search terms with the special event logo;
uploading the special event logo to the web page;
receiving a user selection of the special event logo; and
providing search results relating to the special event in response to the user selection.

Unlike the claim that was allowed, this is much closer to a tactic or concept than the finished product.  The interesting thing about broad method claims is that they are generally less likely to be novel.  Why? Primarily because it’s easier to find prior art documentation about performing some abstract activity, and the threshold to show non-obviousness is much higher.  This proved to be the case for Google, as the only independent claim to survive examination was the relatively narrow software-specific implementation.

Now, the real problem here is that it took 10 years and endless “back and forth” with the patent office before the patentable subject matter could actually be identified, and Google’s legal team argued eight distinct issues with the Board of Patent Appeals and Interferences, finding an argument that actually stuck, when the BPAI finally agreed with only one of the eight arguments raised:

Issue 5: Did the Examiner err in finding that the cited references would have taught or suggested instructions for modifying the standard logo with one or more animated images, as recited in dependent claim 29? (App. Br. 17).

Based upon our review of the record, we agree with Appellant that the Examiner has not established that instructions for modifying the standard logo with one or more animated images is fairly taught or suggested by the cited combination of references. (App. Br. 18). In particular, we see no “animated” image in the evidence before us. Therefore, we reverse the Examiner’s § 103 rejection of claim 29.

As to the overall logic applied by the Board, I’ll have more to say about that later… For convenience, I’ve chopped the board decision out of the file history to make it easier to find.

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