Patent terrorists ruin an industry

A few software patents may be struck down but many more are ready to attack our creativity and slow our innovation.

ZDNet reported yesterday that the US Patent and Trademark Office issued a "final" rejection of one (of five) of NTP's wireless email patents. As a Crackberry owner myself, there was much rejoicing. As a software developer, I have mixed feelings, but probably not for the reason you think.

Let me get one thing out of the way first: although I work on both proprietary and open source code, in my opinion, software patents are the worst thing that has ever happened to computers since that moth flew into Grace Murray Hopper's Mark II Aiken Relay Calculator back in 1945.

While I'm glad to see these patents fall, it's sad to see that it takes so much effort to purge even obviously bad patents in very high profile cases. What about the thousands of others that are flying under the radar? 

When challenged, software patents are often overturned on the basis of prior art or obviousness. But even if there is no prior art, and even if it's not obvious, software has no more business being patented than, say, an artist's signature brush strokes, the structure of a haiku, or the way a book is formatted and laid out.

Look at all the harm patents have done to our industry. Look at GIF. JPG. ZIP. FAT32. Linux. MPEG-4. Developing a video compression format is like walking through a minefield. Patent holders fight over future hi-def DVD royalties, resulting in years of delay and increased cost to the consumer. And so forth. Holding companies with no products are the worst as they extort money from real developers just doing their job.

And now, we have the so called "defensive patents". Companies that otherwise find patents distasteful are forced to ask their developers to take time away from real work to spend dozens or hundreds of hours writing complex patent applications for every little new idea they have. The reason? To have enough patents in their "patent portfolio" so that they can threaten a countersuit to fend off attacks from patent terrorists. It's mutually assured destruction all over again. But if all your neighbors have these weapons, you have to have them too, right?

The only solution is to ban software patents altogether, worldwide. Copyright law provides plenty of protection for software, just as it does for paintings, poetry, and books.

For the record, the patents at issue in the Blackberry case are: 5,625,670; 5,631,946; 5,819,172; 6,317,592; and 6,067,451. It was that last one that got the "final" rejection yesterday. We still await the results of an important court hearing coming up this Friday. And in this world, "final" doesn't really mean final because further appeals are always possible. But win or lose, RIM should be applauded for making a stand.


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