More patent absurdity threatens net commerce

Summary:I remember when eBay was first accused by MercExchange founder Tom Woolsten of patent infringement because of eBay's "Buy it Now" feature.  I completely forgot about it.

I remember when eBay was first accused by MercExchange founder Tom Woolsten of patent infringement because of eBay's "Buy it Now" feature.  I completely forgot about it.  Probably because I thought the case disappeared due to the absurdity of the claim.  However, a report surfaced this week that makes it clear that the case is not only still haunting eBay, but all of Internet commerce. 

My characterization of the claim as being absurd is not meant to be a knock on Tom Woolsten.  Mr. Woolsten: more power to you.  If our system allows us to patent such dumb things as swinging sideways and make millions off it, then so be it. Given the multitude of ways that we get ripped off by people making millions outside of the law, in some ways, we should probably be thankful that Woolsten, like many others, is doing his best to work within it.  Of course, the way our patent system is structured today, it's more like the Federal Bureau of Licenses to Steal and Woolsten just so happened to get one such license on a method for using a credit card to lock in an offer when purchasing items online.  Can things get any more absurd?

The open source-opens standards world (two worlds which are currently colliding) makes for a good case study on why this patent makes no sense whatsoever.  Many people confuse the copyright that goes with source code with the patent rights that go with an invention.   The confusion comes from the idea phrase "patents on software."  It's a loaded phrase that can mean a lot of different things.  For example, protocols for interoperation such as TCP/IP and HTTP fall within the realm of software and such protocols could be patented (this becoming a patent on software).  But more often than not, software is an implementation of a business process and it's actually that process that's patented.  The patent holder may have written some software that's an implementation of the patent and this often leads people to think the software is therefore patented.  It's not.  The source code is a copyrighted implementation of the patent. 

Unless a license like an open source license expressly permits me to copy that source code and do as I please, it's not the patent that keeps me from using a copy of the source code, it's the copyright.   That said, the patent could also prevent me from using the source code too.  If for example, the patent holder doesn't want me to have an implementation of his or her patent, then it doesn't matter how I've implemented the patent.  I could have done it with the aforementioned source code.  Or I could have done it by connecting an eggplant to a zucchini.  Either way, if the implementation infringes on patent, then I can't use or sell that implementation without the patent holders permission.  In fact, part of the risk that many say is attached to open source code is that even though the copyright permits copying of the code (and other things such as derivative development), it doesn't matter a hill o' beans if the authors and licensors of that code infringed on someone else's patent with that implementation.  Legally, you're not entitled to use it (nor are the developers).

So, why the quickie oversimplified discussion of copyrights and patents?  When I see the phrase "a method for using a credit card to lock in an offer when purchasing items online"  I start to wonder whether "a method for using a credit card to lock in an offer" isn't really the process and the context of doing it online is simply an implementation of that process.  For example, today, I can call up my mortgage broker and lock-in the interest rate she's offering to me with my credit card.   Or, I can walk into a car dealership and do the same thing with that "offer" that supposedly will never be available to me again.  So, my expectation is that if I can do this on the phone, or in person (the original implementation of lock-in), then why shouldn't I be able to do it online (the eggplant-connected-to-zucchini implementation)?

In case you missed it, it's cases like this one that motivated me to engage in a bit of satire over the entire patent fiasco.  The point of it is that if we keep heading down this rathole, sooner or later, inventors won't be able to invent anything without infringing on a patent.  All the patents will have been taken up.  There will be nothing less to patent.  And with all those patent holders putting the squeeze on everyone else like Woolsten is,  the world will be a far less interesting, colorful, and lively place than it has the potential to be if innovation can truly flourish. 

Topics: Legal


David Berlind was fomerly the executive editor of ZDNet. David holds a BBA in Computer Information Systems. Prior to becoming a tech journalist in 1991, David was an IT manager.

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