In the Atlantic, Timothy B. Lee explains why most software companies are effectively ignoring the patent system:
A major reason for the recent explosion of patent litigation is that it’s hard for software firms to figure out which patents they’re in danger of infringing. There are hundreds of thousands of software patents in existence, with more than 40,000 new ones issued each year. Indeed, in a recent paper, Christina Mulligan and I estimated that it’s effectively impossible for all software-producing firms to do the legal research, known as a “freedom-to-operate” (FTO) search, required to avoid infringing software patents — there simply aren’t enough patent attorneys to do the work. That’s a major reason why most software firms simply ignore the patent system.
One of the striking things about the patent debate is vast gulf between the views of computer programmers on the one hand and patent attorneys on the other. Steve Lundberg is a patent attorney and blogger who mentioned our paper in a blog post exploring the challenges of performing FTO searches in the software industry. I don’t want to pick on Lundberg, because I think you’d get similar arguments from many patent lawyers. But his post shows a fundamental lack of understanding of how the software industry works.
I work in the software industry (although not as a programmer), and I’ve lost count of the number of times I’ve seen software patents granted for things that clearly do not meet the stated criteria for granting patents. It could be a geeky party drinking game: guess whether a particular common programming technique or decades-old user interface element is patented or not, take a drink when you guess wrong. It’d be educational, although guessing “patented” every time might leave you stone cold sober at the end of the party.
As a matter of patent theory, Lundberg is absolutely correct. Patent law’s novelty and obviousness requirements are supposed to narrow the scope of patent protection. But in practice he’s dead wrong. The patent office issues a seemingly endless stream of patents on broad, obvious concepts like emoticon menus, one-click shopping, and wireless email.
And the existence of these broad, obvious patents means that software companies are constantly infringing each other’s patents by accident. The companies with the largest patent portfolios, such as Microsoft and IBM, have tens of thousands of patents, allowing them to credibly threaten almost anyone in the software industry. Even Yahoo, with its relatively modest cache of 1000 patents, was able to find ten patents to assert against Facebook.
Who would not respect Lee’s expertise, passion and dedication? And yet, he makes a terrible argument by relying so heavily on his claim that patents are too complex. Truth is, he works every day with incredibly complex systems and interactions on a global scale that dwarf the patent thicket.
Of course, many overly-broad or obvious patents get numbers. But you don’t have to look very long at recent court decisions to see that (a) it’s generally not worth the trouble to sue anybody except a major competitor, virtually exempting small shops from concern; and (b) even patent-holder-friendly courts take the opportunity to invalidate, or greatly limit the claims on patents. Recent cases that started with claims of dozens of infringements get reduced to one or two items, and the convoluted application language gets translated into technically-accurate and still jury-friendly terms. (Jurors are likely to toss mumbo-jumbo that they can’t understand.)
Meanwhile, there’s the problem of tossing out the baby with the bathwater. Consider the GSM or wifi or especially the h.264 video standard. H.264 was assembled by dozens of companies proposing parts of the complex technologies, reflecting different expertise. It doubled the quality of images available over a limited-speed or limited-volume data connection, a HUGE win over its predecessor.
Unlike the W3C standards bodies, MPEG — a joint effort of international standards bodies and the UN! — was unwilling to deliberate for year after year; they need to get capability out and usable in time for companies to make Blu-Rays, TVs, Tivos, videocams and cellphones.
Companies contributed their engineering expertise in order to be able to create better products, but some companies have expertise in an area despite not intending to make complete products. (Think of a firm such as Dolby. Movies, tapes, etc. all better despite no Dolby ® brand theaters.) In order to protect their investment in time and talent, it’s natural that they be able to get license fees, fees that would not be forthcoming if there were no protection of their efforts. Of course, there are problems with these so-called essential patents, too, but they have worked fabulously well in making high-quality communication, video etc available to virtually all who ever use a computer.
Meanwhile, with the best of intentions, the W3C rejects these fabulously successful and effective solutions, waiting for agreement to coalesce around as-yet-unproven, patent-free solutions.
Patents ARE complex, and messy, too. Alas, that seems to be the human condition, as we see even in the organization Mr Lee has so positively worked for. Doesn’t mean we should declare open season on anybody with a clever idea who doesn’t want to get in the business of making cameras, building phones or better light bulbs.
Comment by Walt French — March 23, 2012 @ 18:44