We’ve long been concerned about “patent trolls”—companies that don’t produce anything themselves but buy patents, then make their money by threatening and even suing companies that are producing products. But today we’re going to discuss a different kind of trolling: running fishing lures through the water. That’s because this October’s Stupid Patent of the Month, US Patent No. 7,113,449, involves putting data about trolling—the fishing kind—on a computer.
What a minute, you say, how can simply putting some data on a computer be original enough to be patentable? That’s a very good question. The Patent Office is only supposed to issue patents for new, original, nonobvious ideas, and each patent application is individually reviewed to ensure it meets those qualifications. In practice, however, the Patent Office often does a cursory job reviewing patent applications, and sometimes fails to apply common sense. This is how Amazon recently got a patent on white-background photography. Or how a yoga studio got a patent on filming a yoga class.
Turning back to this month’s stupid patent: it relates to an electronic device with searchable data about lure depths. Different kinds of fishing lures run at different depths depending on the kind of line used. It can be useful for anglers to have this information accessible. For many years, a company called Precision Trolling painstakingly collected data about lure depths and published this information in books. In late 2003, the company filed a patent application suggesting putting its data on a computer and making it searchable. This is a decent, useful idea, but should it be patentable? Of course not. Lots of people have digitized information from books. They don’t all deserve a patent.
We think the 7,113,449 Patent is clearly invalid. If it was ever litigated, the court should throw it out as obvious. Putting data (of any kind) on a computer and making it searchable by the user was already mundane decades before Precision Trolling filed its patent application. The patent is also likely invalid under Alice v. CLS Bank—this is a recent Supreme Court decision that holds that an abstract idea (like making data—even specific types of data, like trolling data—searchable) doesn’t become eligible for a patent simply because it is implemented using generic computer technology.
We can see how silly this patent is by looking at its broadest claim (the claims are the part of the patent that’s supposed to outline the boundaries of the invention). Claim 1 of the patent reads:
1. An electronic fishing aid comprising:
a user interface having user inputs and a display;
a data structure containing data relating to variables including lures, depths and line lengths;
a processor for controlling the display, to provide information to a user identifying a lure, depth and line length combination as a function of user inputs and data from the data structure.
It’s worth going through this claim element by element. First we have a “user interface” with “inputs” and a “display.” Okay, so that covers almost every computer since the punch card era. Second, we have a “data structure” with data relating to variables like lure type and line length. As the patent explains, this is a database. These have also been around for a while. Finally, we have a “processor” that makes sure data is displayed in response to inputs from the user. In other words, a basic computer with a searchable database. To call this mundane, even back in 2003, is to understate how obvious it is.
Consider the following example. Down the street from EFF is a restaurant called Curry Up Now that serves Indian/Mexican fusion cuisine. Suppose Curry Up Now installs a mobile payment system like Square or Apple Pay. Did the restaurant just invent “a mobile payment system for Indian/Mexican fusion cuisine transactions.” Of course not. It doesn’t matter if it’s the first restaurant of its kind to use mobile payments. All it has done is apply common technology to a particular business. Precision Trolling’s patent is like that.
Precision Trolling has never been foolish enough to assert its silly patent in court. But it does wave it around to deter competition. The company’s page in Google’s app store includes the following statement:
Precision Trolling Data LLC owns a patent U.S. Patent No. 7,113,449 entitled “Marine Electronics With Lure Depth Analyzer” issued September 26, 2006 which prevents other companies/individuals from providing lure data on an electronic device.
So, while Precision Trolling has not gotten into the patent trolling business, its patent could easily chill innovation and competition. Another company may want to collect lure data and make its own app. Even though the 7,113,449 Patent is almost surely invalid, they might worry about being dragged into an expensive lawsuit. This risk could easily be enough to deter a small business from entering the space. Stupid Patents don’t have to be litigated to cause harm.
For more information about the challenges facing innovators under the current patent regime, as well as concrete measures that policymakers must take to fix it, check out EFF’s Defend Innovation whitepaper.