Patent terrorists ruin an industry

Patent terrorists ruin an industry

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

TOPICS: Patents

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.

Topic: Patents

Ed Burnette

About Ed Burnette

Ed Burnette is a software industry veteran with more than 25 years of experience as a programmer, author, and speaker. He has written numerous technical articles and books, most recently "Hello, Android: Introducing Google's Mobile Development Platform" from the Pragmatic Programmers.

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  • Bill Gates didn't need software patents...

    While I don't blame h im for software patents, Microsoft is a perfect example that software companies can be very profitable without relying on "software patents."

    According to the founding fathers of this country, patents were supposed to be granted infrequently, but that value has been lost.

    Thankfully, Europe still doesn't have "software patents"-for now.
    • Microsoft loves patents

      If they don't need patents, why are Microsoft going after so many? Could it be that they rely on them to drive competitors out of business or stop people making similar products?
      • Let me lend you a clue.

        Microsoft has NEVER went after anyone with a patent, not once, not ever.

        However the good old open source "supporter" IBM has on many occasions.

        Seems you have your villians seriously confused.
        • Just out of curiosity...

          when has IBM gone after someone offensively rather than defensively?
          • You must not have been around in the 80s.

            Back when IBM beat on everyone they could.
          • You must not have been around in the 60s and 70s

            when any patent lawyer would have laughed you out of the office if you brought in an idea to patent. They would at least want to see a prototype. And, by the way, nice swerve. You always claim to honestly answer all questions put to you. This is not an answer to my question, but I would accept a lawsuit that IBM started to beat on someone in the 80s that was over a violation of a [b]software patent[/b]. After all, this is about software patents, not who IBM beat up on 20 years ago.

            You are (purposely) straying off topic. I'm not sticking up for IBM, I'm just asking you provide me an offensive lawsuit started by IBM over a software patent. One from the 80s would be fine.
        • IBM has even withdrawn their defensive patent suits vs SCO

        • NOT YET

          Just not yet, with contracts still to sign with corrupt governments, Windows Vista coming. Wait five more years, then you'll the saints they are.
          • I judge history, not a crystal ball.

            Crystal balls have a habit of being wrong 99% of the time.
        • I don't know

          what axe you have to grind against IBM. If there's any company who should have patents its IBM. Most computer hardware was developed by IBM.
          • Nothing against IBM, OR Microsoft

            But the silly claim that MS is using patents agaisnt anyone is pure BS and the original poster has his head up his donkey.
        • Have a clue back

          They may not have gone after anyone with a patent, but who'd seriously not check a patent to see if it's owned by Microsoft. Personally, I'd be checking every patent that my program could potentially breech, just to make sure I wouldn't be bankrupted by a long, protracted court battle with one of the biggest software companies.
          • Ballmer's publicly threatened Linux

            People here seem to forget Steve Ballmer has publicly threatened to go after people/corporations/countries using Linux as being infringers on Microsoft's software patents.


            Remember the hairy difference between copyright infringers and patent infringers: buyers and readers of infringed copyrighted works cannot be held liable - only the distributers. Not so in the patent world - any user of a product infringing a pentent can be held liable. Of course, in practice it's very hard to go after millions of individuals. The RIAA is going after 12 year old kids because in a peer-t-peer network, every node is a distributer...
          • Continued


            The url is a must read - you'll find out what Lehman's background was before his appointment. Hint - he certainly had an agenda!
          • More

            Software patents are nothing short of legalizing extortion. Patents are fine in those industries where the cost of entry into the market are high. They reward R&D investment. Software is totally different. Virtually every single medium-to-large company here in the US has programmers (by title or by function) on staff. Anyone can spend $300 on a low-end PC, load Linux on it, buy a book and learn to program. I don't call that high cost of entry.

            Microsoft will first begin to use patent litigation threats to go after their own customers who are thinking about migrating to Linux, and then later they'll even use that threat to go after their own customers who DON'T migrate from XP and Server2003 to Vista.

            That's why software patents are bad!
        • Unntrue statement (yet again)

          Microsoft shut down the VirtualDub ASF to AVI project (Free Software GPL code) via patent threats.

          Please stop telling untruths on behalf of your master.

          Jeremy Allison,
          Samba Team.
          • Want a program to convert asf (or wmv) to avi?

            I can suggest a number of good ones.

            The telephone call to Mr. Lee was not from Microsoft's legal section, apparently.

            It's possible that VirtualDub could convert asf files now, should Mr. Lee choose to do so.

            I use VirtualDub and I want to be clear that this post is not against Mr. Lee or his program. Period.

            But this is not an especially strong example of Microsoft using patent threats.
            Anton Philidor
          • Not really...

            Anton Philidor wrote : "But this is not an especially strong example of Microsoft using patent threats"

            But it is, I hope you'll agree, AN example. Which contradicts the flat untruths from No_Ax. That's the point I'm trying to make. Mr. (or Ms.) No_Ax lies on behalf of Microsoft. For what purposes, I can only speculate, but Microsoft has been discovered in the past to use astroturf campaigns to get their corporate propaganda out.

          • Commensurate proof.

            An accusation that someone is lying is severe. I can't say that it's proven by an obscure example with a question about whether the call Mr. Lee received was a considered company policy.

            No_Ax would have had to hear of it previously and have believed it significant and have willfully concealed it. All of that is unlikely.

            I also have no experience of No_Ax lying in the past, and some confidence that he believes what he says. When writing about events, I have often known his statements true.

            May I suggest that an accusation in this case is excessively harsh.
            Anton Philidor
        • Ofcourse they haven't

          1. The patents are much more valuable to them in their FUD-marketing campaign, as they are marketing indemnification now, and that FOSS suppliers can't give you that because of lack of patents (or IP as they are obfuscatingly calling the patents and copyrights rights)
          2. Chances are the patent would be throws out of court, thereby diminshing their on patent-portofolio in order to effectively enforce the FUD-campaign.
          3. They might be waiting (read lobbying) for software patents to become as global enforced by the WTO as copyrights are now, so their actions are not limited to the US

          So while they are not legally enforcing their patents, they sure are using them in their day to day business.