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by Franki

There is nothing particularly new about this issue, but I’ve collected enough stories on the subject to warrant another attack against software patents. The more people that know just how dangerous they are, the more likely that someone in power will notice and do something about it. (or at the very least, stop some even worse law from being added by inept un-knowledgeable politicians trying to get votes, and listening to paid industry lobbyists.)

Big companies like IBM and Microsoft love software patents, they can use them for two primary reasons, one is as a defence; If someone litigates against you, they should make sure that they are not infringing any of your patents or they will face a counter suit. And as an attack; If a competitor is taking market share from you, and you want to turn the tables, finding a patent infringement and litigating for damages is often a useful way to get started. IBM has one of the biggest patent portfolios, but to the best of my knowledge they only use it for litigation defence and licensing. Microsoft has a huge and growing patent portfolio, and thus far have really only used it for defence and licensing as well. Although there is much speculation that they will be using it to attack Open Source software like Linux, Samba, Apache, Mozilla and In some ways they are already using it to fight open source as can be seen in the recent SenderID anti-spam issue covered here.

The question people should be asking, is: Should patents be granted for things like “Double clicking your mouse button” or the local collection of registration information which is later uploaded to a remote server, or a Window containing a “to-do” list. and online voting systems?

All of the above are patents owned by Microsoft, and I think it is safe to say that none of them are incontestable with regards to prior art.

It’s not just the big guys that have jumped onto this bandwagon, a company called Acacia have what they say is a valid patent on the steaming of images and sound over a network, and are threatening litigation to anyone they think might pay them money. And then we have E-Date Corp who are threatening litigation over their patent for downloading music over a network. Another example is a company called BTG Plc the only product of whom is a patent portfolio that they use to extort money from other companies. Currently they are suing Microsoft and Apple over an online updates distribution method patent. And finally we have Forgent Network and IBM/Unisys, who hold patents on the JPG and GIF image formats respectively. Forgent Network waited until JPG became the dominant image format on the Internet before suing a huge number of companies for royalties.

The problem is getting allot more coverage of late, due to the in court behaviour of these companies, and due to articles like this one. The problem is not just one of money, or even anti-competitive behaviour, it’s also about the stifling software innovation. Why would a programmer or a team of programmers spend months or years writing some revolutionary piece of software, if when they are done, they come across a company with its hand out who spend no time at all developing the technology claiming “your using our patent”? You decide people, what is easier; To develop, market and distribute a big software project, or to patent some vague online idea and then stand around waiting for companies to create something that “might” use it, and go to them with hand extended for money?

And therein lies the problem. As long as it is easy to patent ideas that are so vague that they can challenge nearly everything, then the problem will only get worse. What needs to happen, is that the patent office needs to either ban software patents, or strongly limit their scope/increase the minimum specifity. They also need to actually have people from the software industry reviewing these patents, as the ineptitude of the patent office reviewers is one of the biggest problems.

Until that happens, the only people making money are patent holders and lawyers. And that’s hardly going to attract a new generation of programmers is it? Sure, programmers need to be able to protect their work, but copyright already protects their actual implimentation of an idea. Patenting the idea, without the need of code to back it up, is just silly and worse, it’s dangerous to our careers as developers.



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