Software patents are hurting the software industry by allowing big incumbents and patent trolls or NPE’s (non practising entities) to place a huge tax on newcomers. (or in Microsoft’s case, make Android as expensive as possible to manufacturers in the hope of making their windows mobile OS more appealing)

Anyway, not many people would argue that it’s a bad situation, even President Obama said as much recently when trying to rein in the patent problem.

So what to do? Why get silly patent applications that should never be granted dismissed by the PTO that’s what!

reading this article shows that it isn’t as hard as it seems and doesn’t take much time. If every coder got one application blown away a month it would go a long way to making sure that once the current batch of rubbish patents have expired or been ruled invalid there were not a new batch waiting in the wings to take their place.

In something of a win for the good guys, the European parliament has voted overwhelmingly against the proposed “Directive on the Patentability of Computer Implemented Inventions.” otherwise known as the software patents directive. It isn’t a huge win for those against software patents because the EU is already rife with them and it’s simply a matter of “business as usual” for the big software companies.

The news has been covered by dozens of IT sites already so I’ll not go into it further here except to give you some links to those sites.
theregister.co.uk
webpronews.com
news.bbc.co.uk
http://theinquirer.net

Zdnet has an interesting article about Microsoft and the patent system. Microsoft recently indicated that they thought the patent system needed serious reform, they then went and patented a heap more obvious or non original ideas apparently to prove their case that the patent system needs reform. I suspect Microsoft’s idea of reform is a system where they get free run, but where people challenging their patents or people suing them for infringement don’t. Microsoft has patented 3000 “ideas” so far this year alone, so I can see why they patent system needs reform, but it’s not until you consider that it costs Microsoft $100,000,000 a year to defend itself in patent cases that you get an idea of why they might think it needs reform.

To reform the patent process isn’t that hard, the problem stems from the overworked and underpaid folks working at the patent office who don’t have knowledge or experience in all the fields they are being asked to rule on. What should happen is an industry consortium of experts in each field should be created. And all patents for their field should have to pass though those experts before being granted. This would ensure that people actually knowledgeable about a field would be making the decision that something is innovative and non obvious. There should also be some sort of period just before approval when applications are made available in a public forum and the public get a chance to show prior art or other reasons why a patent should not be granted. The experts should then have to review any relevant evidence that came up before making the final decision. Zdnet’s idea that frequent offenders be banned from the table is a good one also.

It isn’t perfect, but it would be much better then what we have now. I have no idea if anything I’ve written offends any patents out there and it’s likely that I won’t know until the holder takes me to court and that worries me a lot as I’m just a little guy plodding along in the trenches. This doesn’t discuss the need or implications of software patents directly, I personally think copyright is all that is needed for software, just like print media, movies and music. But the problems detailed above are 100 times worse when applied to as intricate and ill defined a process as “software”.

According to Reuters, Apple and Microsoft (among others) are pushing for extended patent protection. They argue that they need broader protection to stop Open Source companies that make their money from services instead of software sales from stealing their “innovations”. The ironic thing is that Apple didn’t mind taking from the Open Source community when it based OSX on FreeBSD, and they also didn’t mind when they based their Safari web browser on KDE’s (One of Linux’s most popular graphical user interfaces) KHTML rendering engine. Now they want protection from Open Source companies? I’m not overly fond of Microsoft, but at least they never claimed they like and support Open Source in business.

Let us look at some facts here, neither Apple or Microsoft invented the Graphical User Interface, neither invented TCP/IP (the protocol used by the Internet and most networks), in fact Microsoft’s early TCP/IP implementation was said to be pulled out of BSD as well. Neither invented E-mail, Instant Messaging, web browsing, digital music and movies, spreadsheets, databases and all manner of other things we take for granted on our PC’s (In fact neither invented PC’s either). That’s right folks all of those REAL innovations were created by other people and companies and copied by Apple, Microsoft and pretty much everyone else. Fortunately the creators of these innovations were not as money grabbing as these two or there is a good chance that the modern PC would look very different from what you are reading this on. I’m saddened and disgusted at how our early pioneers have been replaced with money grabbing opportunists who appropriate the best ideas from others, but patent ever decent idea of their own (and from what I’ve seen they patent a good many bad ideas as well). The older I get, the more I think Richard Stallman might really be onto something.

If you find yourself wondering how software patents favour the big companies, consider that both Apple and Microsoft were very small companies once. Had they been told they had to pay millions in license fee’s to use a Graphical User Interface, or any of the other innovations mentioned above, would either of those companies be as big as they are now? In fact I’d go so far as to say that if GUI’s (for example) had huge patents attached to them, IBM would own most of the software industry as they were one of the very few that were already big enough to have paid big patent licence fees when the GUI was invented by a Xerox research lab.

Forgent is one company that makes me wonder if my dislike of Microsoft’s business tactics could have been better directed at them. Forgent has been handed around 100 million dollars for the compression patent that they claim is used in the Jpeg image compression standard. Apparently that is not enough as they’ve just added Microsoft to their list of targets. This comes in the same month that they have started targeting DVR companies, no doubt expecting the same hand outs they’ve been getting from the likes of Sony and Adobe. Microsoft has asked that the court declare them non infringing and invalidate the patent in question.

If we needed another reason to swap from JPG format to the open and free PNG format, we now have it. The only upside in this sorry saga is that Forgent went after Microsoft, a company that owns a huge pile of software patents and who has enthusiastically encouraged the official adoption of software patents in the EU. Perhaps this will make them wonder if opening themselves to a whole new era of software patent lawsuits is such a good idea. They are after all, one of the biggest targets with the deepest pockets. They have paid out huge sums of money to settle many such claims in the past couple of years, but if they keep coming at this rate, it will eventually significantly hit Microsoft’s bottom line and that is something that their shareholders won’t be very happy about. Microsoft is still working hard to extract itself from the Eolas browser plug in patent lawsuit. How many more does it need to become embroiled in before it sees how software patents are doing more harm then good?

I’ve said it before, and I’ll say it again. If the giants upon who’s shoulders the current Internet stands had been as patent hungry as the current proprietary software developers are now, we would not have the (mostly) standards compliant cross platform Internet we have now. (for example, consider one Internet for Macintosh users, one Internet for Windows users and one Internet for Unix/Linux/BSD users all incompatible with each other. Much like the Instant Messaging mess we have now.)

Trading Technologies, a company based in Chicago has a few software based patents for their trading system and have just filed suit against a UK firm by the name of Man group (a hedge fund company) in the hopes of getting a 2.5 cent contribution per trade on the Chicago Board of Trade, Chicago Mercantile Exchange, Eurex US and Euronext.liffe exchanges. Trading Technologies have stated that their software saves much more then would be provided by the 2.5 cent per trade tax would return.

This quote from Josh Poulson describes three of the software patents.

One of the patents appears to describe any trading order entry system that displays market depth (essentially the difference between highest bid and lowest ask prices) and allows a trader to select (with one click) a region of prices in which to place an order it could affect a large number of home-grown or commercial trading software. The next patent describes the fancy table that is used to describe the market. The third appears to patent the idea of using multiple colors to make a more readable chart, although the added value comes from specifying additional colors to parameters of the table on the fly.

For more detail on the patents and lawsuits see Groklaw. This should start people thinking about the real consequences of Software patents if they can use patent litigation to get a tax on trading transactions. The odd thing about the three patents listed above is that two of them are similiar to what has been used by pricing comparison software and websites for years. Just taking an existing concept and applying it to an alternative subject does not constitute “state of the art” and “non obvious” so at least a couple of the patents should not have been issued in the first place. (Although I am of the opinion that patents that describe software methods shouldn’t be valid at all as they generally help one and hurt many.)

Forgent, the company that litigated loads of money from companies using the JPEG image compression format is looking for more money and so has decided to go after DVR video. Luckily it remains to be proven if their patent was the first related to such technology and as such the patent has yet to be proven in court.

My problem with the patent system is that there are not enough people at the patent office who are sufficiently knowledgeable on Tech issues to decide that a specific patent is valid or not. So we end up with companies being able to patent the vaguest ideas and extort millions from companies that are doing the actual innovating. If I speculated about using my nose to control a computer cursor and patented the process, anyone that actually did the work of making it feasible, even if they didn’t know I had previously speculated about it, could have at least part of their proceeds funnelled to me.

The problem is that a patent should need to be really explicit, not at all general, and most patents are not. I believe the term is “overly broad”. To have the idea of using my nose to control a cursor isn’t enough, it should be necessary to explain in the patent exactly how I plan to get the nose mouse working. More often then not, that sort of detail is not considered necessary for a patent application. So what we end up with is millions of overlapping patents and lawsuits up the wazzo, often over patents that should never have been granted in the first place. Lets be honest here, the current process means that all the get rich quick mobs are starting patent portfolio companies, so they can come up with vague ideas, patent them and make a quick buck from the companies that do the actual innovating. And they want to extend this rubbish to Software in the EU as well? They need only look to the US courts to see why that is a bad idea.

As it stands now, I expect Forgent to hold out their hands to anyone trying to create devices that record video (such as TV) to disk such as TIVO. The JPEG fight earned them about 100 million dollars and hasn’t finished yet, and I guess a taste like that gets you addicted.

You’re probably asking yourself “Why should I care?” and that’s a valid point, but consider that if the manufacturers of these devices have to pay say $5 dollars per device to one patent holder, and other $5 dollars to another, then you can bet that extra $10 dollars will be added to the price of the device. So you the customer ends up paying these patent hoarders with your hard earned dollars. That is one reason you should care.