Last week, Google restated its call for patent reform in an editorial published in the Detroit Free Press. The content of the message was not a surprise – clearly playing to the Michigan audience, the company added a “jobs” twist to the familiar rant about litigation costs, dubious claims, and “patent trolls.” The timing of the article was just as predictable – the House Judiciary Committee, chaired by Representative Conyers from Michigan, was set to hold a hearing on its version of the Patent Reform Act of 2009 on the next day.
But something that happened the day before the editorial hit the press is very surprising, perhaps even to Google.
On Tuesday, the Patent and Trademark Office granted US Patent No. 7,525,207 to the company for a Water-Based Data Center.
Big deal, right?
That’s what I thought, until a Twitter friend (@elosf) had me looking at claim 1 of the ‘207 patent:
1. A system, comprising:
a computer data center proximate to a body of water comprising a plurality of computing units;
a sea-based electrical generator in electrical connection with the plurality of computing units; and
one or more sea-water cooling units for providing cooling to the plurality of computing units.
Whoa.
Now I’m interested. As a geek in every sense of the word, the subject matter intrigued me. But, as a patent attorney, the breadth of the claim left an impression.
My curiosity led me to Public PAIR, where I learned the following about the ‘207 patent:
- the patent issued in 26 months (certainly not break-neck speed, but quick nonetheless)
- the Office allowed the application in the first substantive action (along with a restriction requirement, which was addressed solely by Examiner’s Amendment in the same paper)
- the applicant made no substantive prosecution comments;
- the Notice of Allowance includes the following reasons for allowance: “There are inventions in the field that provide similar functionality and/or have similar features, as prior art of record shows. Applicant(s) invention differs from the prior art of record by the combination of its functional features, which include water motion generator, cooling arrangement and computer data center, which in combination are performing as disclosed and claimed, and which the examiner search failed to find.” (emphasis added)
(you can download a .pdf of the patent here, and a .pdf of the entire prosecution history here).
I’m not familiar with either the data center art or the “sea-based electrical generator” art, so I don’t know if that claim is patentable or not. But, in the post-KSR world, it’s incomprehensible that the Office would allow such a claim in a first action on the merits. Basing the allowance on grounds that the claim differs from the prior art by “a combination of…functional features” that, individually, are known in the art only confounds the problem.
Besides the obvious indefiniteness problem (the specification doesn’t mention the claim term “proximate,” making me wonder if land-based data centers with pipes reaching to the sea are covered), a simple Google book search reveals a 1997 publication stating that “the Unisys UYK-43 is the standard US Navy shipboard mainframe” that weighs 1795 lbs “when water-cooled.”
Surely the Office, in applying KSR and the broadest reasonable interpretation of the claim language, should have addressed these issues during examination. But, it didn’t and now Google is the proud owner of this incredibly broad patent.
For Google, the timing of this embarrassment of riches couldn’t be worse. The issuance of the ‘207 patent presents a troubling irony – the company was granted a very dubious patent claim the day before it stepped into the pulpit and lectured about “dubious infringement claims” and the need for reform.
It also highlights a fundamental problem with the narrow focus of the company’s (and industry’s) call for patent reform:
By focusing on the “expenses” and “problems” associated with so-called “bad patents,” reformers are abandoning the broader issue of patent quality – which, just a few short years ago, was the driving force behind the current patent reform movement.
Intentional or not, this is a sad development. While the Googles of the world call for patent reforms that devalue all patents in an effort to address the dubious ones in the herd, the Patent Office has been reduced to what Professor Mark Lemley recently termed “an assembly line type of operation.” That the outputs of such an operation are sometimes troubling – as exemplified by the ‘207 patent – should come as no surprise.
Patent reform efforts that continue to focus narrowly on the outputs, such as those called for by Google, will only make the overall system weaker. Patent quality is the basal problem that simply must be addressed.
It’s time we built a Patent Office and a patent examination system that makes everyone – Examiners, attorneys and agents, companies, and even the Office itself – proud. A fully funded Office capable of efficiently and thoroughly examining patent applications would go a long way, I think, to addressing the so-called “bad patents” problem that has Google and others concerned. I suspect the same Office would do a better job of promoting innovation and creating the “jobs” of which Google speaks.
