Software patents: Lots of whining, but reform unlikely

Software patents: Lots of whining, but reform unlikely

Summary: Software patents are being acquired like they are tactical nukes as companies look to build their arsenals.

TOPICS: Software, Google, Legal

The whine-a-thon over software patents---especially in the wireless industry---has reached a fever pitch, but there's little chance of anything actually being reformed any time soon.

Let's recap a few data points over the last week.

It's fairly obvious that patents are the new tactical nukes in the technology industry. Companies want to grab patents largely to defend lawsuits than actually create anything. The companies with the most patents win.

Short of some cross industry disarmament policy---something that won't happen---there will have to be some reform on the patent front.

Among the options:

  • Ban software patents completely. Some folks will argue that software patents are bunk. Cuban argues that software and process patents should be banned. The whole ban software patents thing is a tad unrealistic.
  • Reform the system. Patent reform has been on the radar for years. Nothing meaningful happens. Cuban noted:

It’s bad for my little companies. It’s horrific for bigger companies. It’s so bad that major tech companies are buying big collections of patents not because they want to own the intellectual property but rather because they want the ability to respond to patent lawsuits with a lawsuit of their own. It’s like playing a game of thermo nuclear war. If all sides have “nuclear patents” they can respond to patent litigation with equal force. In other words, if you have enough “nuclear patents” no one will sue you for patent infringement because you have enough power to respond in kind. It’s crazy and costing this country jobs.

Google just bid $900mm to buy a patent collection. Those patents ended up being sold for $4.5BILLION dollars. That is money that for could have gone to job creation.

And now the reality: Nothing is going to happen. Congress is a mess. Patents will always take a back seat to things like making interest payments, debt downgrades, elections and an economy that is sucking wind.

As a result, the thermo nuclear patent game will continue. Companies can whine about lawsuits and sky-high bids for patent portfolios all they want. Their time may be better spent acquiring patents.

See also:

Topics: Software, Google, Legal

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  • RE: Software patents: Lots of whining, but reform unlikely

    It will have to be addressed in the courts but unfortunately it will be on a case by case basis for some time to come.

    Fastboot likely won't stick and neither will Apple's process patent from the HTC case but others might.

    As for Android, the only company to go after Google has been Oracle and there is evidence that Sun did know and Approve of Google's use of Java.
    • RE: Software patents: Lots of whining, but reform unlikely

      @Peter Perry
      Problem with patents & courts is that it cost moneys! Lots of them. So it may be more expensive to prove that patent is stupid & obvious & had prior art, and paying license fees may be cheaper.

      This way lots of unlawful patents can circulate.
    • RE: Software patents: Lots of whining, but reform unlikely

      @Peter Perry
      Sun of course knew and welcomed the use of Java by Google as they expected to get money from that. They even offered Google java IP licensing for 100M but Google refused Suns licensing offer even though their Android executives said in internal mails that they needed the license or they would make enemies.
  • Patent Hit Man

    I propose a "Patent Hit Man", protector of all developers. Let's face it, development is the one area where the small guy can take on the big guy, but not when patents are involved. Whenever a company like Lodsys sues indie devs, then Lodsys attorneys should go onto a hit list and be taken out. Eventually indie devs will be left alone + less lawyers is always better :)
    General C#
    • RE: Software patents: Lots of whining, but reform unlikely

      @General C#

      Yeah, murder. Always a good idea. And it's not like a small developer would ever steal something from a bigger company, so why bother with the courts anyway, right? Only large companies can steal patents, so let's just murder their lawyers, right?

      Your post was silly. Even by ZDNet standards.
    • RE: Software patents: Lots of whining, but reform unlikely

      @General C#
      Great! Lets help the little dev of Wifi sync sue apple for denying him and stealing his creation. Lets help google sue apple for stealing the pull down status bar that's been a part of android since the beginning that apple now is also placing in ios5. Lets sue apple for Price Fixing consumer equipment they can purchase themselves for a fraction of the cost elsewhere. There is also apple's ability to handle links in apps and messages. This has been around for a long, long time with pc software.

      Apple is the big little infant throwing a tantrum because they have no more innovations and do not want to play fair with competition.
  • Doesn't need reform

    It needs the USPTO to do its job. An inventor needs to prove it's an invention and non obvious. USPTO is interpreting that as 'can we prove it ISN'T an invention and ISN'T non obvious'.<br><br>The problems USA faces today are entirely created by misinterpretation of basic patents rules and it's not restricted to software patents, it's a problem right through the patent system.

    The only reason it's so bad in software is because the gap between "proof of invention" and "failure to prove NON invention" is so huge because most of software is never revealed.

    The problem is far far wider and it's crippling US businesses.
    • RE: Software patents: Lots of whining, but reform unlikely

      Add inability to cheaply disable patents, and cash USPTO brings each year to USA budget (which recently have troubles).
    • It all costs money

      More money is directed to legal preparation and defense of patents than developing them. Use to restrict competition by larger companies.

      "It?s fairly obvious that patents are the new tactical nukes in the technology industry"

      Yet those of us saying this have been mocked by the likes of Will Pharaoh and friends;-)
      Richard Flude
  • Software patents are a problem and have to be reformed.

    and I say that as someone who's done a few patentable things. Software code, since it is written in languages and usually not assembler, is as much like speech as it is like architecture, particularly in messaging oriented systems: eventually you're going to have the same conversation someone else has had.<br><br>Practically, it eventually becomes a problem when there is nothing new under the sun to talk about. How do you patent search every process you put into your system to ensure that hasn't happened?<br><br>Software in and of itself doesn't make anything or do anything, and as such is unlike patents for pharmaceuticals or gadgets. Software can enable those things, in that it gives instructions to a computer that makes them happen; but it isn't itself these things. Like I said, software is like conversation, or more accurately, dialog. Some leeway must come into play so those "conversations" do not stop with each new patent.
    • RE: Software patents: Lots of whining, but reform unlikely

      @rbethell This. There's a reason we call them languages. It's like having to pay a fee every time you say a colloquialism.
      • RE: Software patents: Lots of whining, but reform unlikely


        No, it's like paying a fee every time you use a trademark or copyright. Those are not the same as just saying words as they mean something.
      • No, Because Trademark and Copyright Already Exist

        No, Aerowind's analogy was much more accurate. Copyrights and trademarks already exist in the software world (one more reason that patents shouldn't), so you already can't use them.
    • RE: Software patents: Lots of whining, but reform unlikely

      @rbethell Exactly! This explanation is a good one. Add onto that the fact that most software patents are on something like "Method of clicking a button to buy something" and not the actual implementation.
  • RE: Software patents: Lots of whining, but reform unlikely

    The REAL reason that there would be no reform to the patent system is really quite simple - there is way too much revenue coming into the fed govt for all those bogus "inventions". To fix the system would mean cutting off that $$$ supply, and that just plain ain't gonna happen.
  • RE: Software patents: Lots of whining, but reform unlikely

    Geez, I hate it when people label legitimate concerns and discussion of the stupidity of some/all software patents as whining! It's a serious problem that needs to be addressed. Not discussing it because knuckleheads like you label it whining would be counterproductive. I hope those companies ignore labels like yours and continue to push Congress and the USPTO to reform the process.
    • RE: Software patents: Lots of whining, but reform unlikely

      @GTGeek88 Read who wrote this. It's classic Dignan. Inflammatory headlines, little/misleading substance. His blog is like scraping the bottom of the ZDnet barrel.
  • Time will save us

    The only thing that will save us (eventually) from all this patent folly is time. Unlike copyrights, which just keep getting extended, patents still have a finite length of 20 years. Today patents exist on some very basic and simple software concepts (which were obvious to most developers but not the patent office...). Many of these patents are mid-life, and after they expire nobody can patent them again. They will officially become "open-source".

    This is a dumb and inefficient way to address this problem, but given the tens and hundreds of billions of "value" that companies have invested in them, it's the only option we have.
  • Nice

    I suppose you would sell stock of those big technology companies and surely are not buying?
  • RE: Software patents: Lots of whining, but reform unlikely

    "serious risks in Oracle lawsuit" link goes to...Florian Mueller. Bestill my beating heart. Can you come up with a non-Florian-Mueller source saying these things?

    And while we're on topic, are you guys gonna own up to letting this guy basically do your job and thus control your editorial slant for you? You're getting to be as bad as the political media.