Network Associates was granted a patent for spam-blocking software on May 4. The patent, which was filed for in December of 2002, covers Bayesian spam filtering (already part of a number of mail clients, including the open source Mozilla client), a method publicly discussed by Paul Graham in his article , A Plan For Spam, in August of 2002. Graham's article is not cited as prior art in the patent.
Depending on what Network Associates decides to do with this manna from PTO heaven, this could be very bad for many people. Theoretically, it could mean that nearly every commercial and noncommercial software system for screening spam on the market right now--the patent is *that* broad--would require a royalty payment to Network Associates.

Then there's this latest Microsoft patent, on the double-click. I've read the patent description; sure, using the duration and frequency of mouse clicks to activate different functionality of applications is an innovation--but was it really Microsoft's innovation?

The PTO is the red-headed stepchild of the commerce department. It's a money-making concern, but almost all of the money it brings in is put into Commerce's general fund, which means none of it gets rolled back into the patent system itself to make it better. Instead, it limps along, and every now and then, gives a kid a patent on a method for swinging a swing.

This is just the latest in a long chain of recent software patents that were based on technology that was already widely demonstrated or even implemented elsewhere. There's just no really good way for the PTO, under current circumstances, to do a complete evaluation of prior art. How can they fix it?

Well, for one thing, they could not allow most software patents. But barring that unlikely course of action, PTO could just open up the patent review process up for public comment, giving citizens (and watchdog groups, and competitors) a chance to offer prior art to counter broad patent claims. The applicants would then have to defend against the challenges, or modify their application to take them into account.

Of course, patent lawyers would love this system. The cost of getting a patent application through the PTO would skyrocket for software patent applications, and the backlog would stretch into the next decade. But that might be a good thing...