Software patents and the dependency problem

Software patents and the dependency problem

Summary: I've long taken a dim view of software patents. I wrote this piece as far back as 2003, arguing that Europe should avoid copying the American approach to software patents, both because they are unnecessary to spur innovation and because it would be useful for Europe to demonstrate why.

TOPICS: Patents

I've long taken a dim view of software patents. I wrote this piece as far back as 2003, arguing that Europe should avoid copying the American approach to software patents, both because they are unnecessary to spur innovation and because it would be useful for Europe to demonstrate why.

There are nuances to my view. I've noted - repeatedly - that one advantage of patents is that it provides useful cover for small companies and / or individuals so that they can compete with larger companies without fear their ideas will be copied wholesale. IBM might not exist today if not for a little patent on tabulation machines that Mr. Hollerith filed in 1889 during the early days of his company.

Unfortunately, the costs of software patents outweigh the benefits, by my reckoning, and it all comes down to the problem of the "stackable" nature of ideas. If I were to patent, say, a unique design for an electric sewing machine, that sewing machine idea wouldn't find its way into farm equipment, or military hardware, or be among one of the many patents used by manufacturers of a new process for making plastic dolls. Traditional patents tied to a particular implementation had a pretty narrow domain of infraction. If you had a sewing machine patent, industry segments outside that of sewing machines would be largely unaffected.

Not so software patents. The proposed $1.5 billion fine a jury has awarded Alcatel to recompense them for supposed violations by Microsoft of a patent related to MP3 audio compression (even though Microsoft paid $16 million to the Fraunhofer institute, the organization they THOUGHT had the right to license them) is so high because they concluded that Windows as a whole infringed, and hence, every copy of Windows sold since 2003 is considered in violation. Windows, as a general purpose software platform, isn't like a sewing machine. It's a sewing machine, a sherman tank, a doll making process plus much else combined.

The risk clearly isn't confined to Microsoft. Every iPod ever sold has support of MP3. Texas Instruments has chips where the compression technology is constructed in hardware. Heck, any vendor who has written MP3 codecs are potential infringers.

It's safe to say that the ramifications of the MP3 compression patent are worse than the fallout from UNISYS' late decision to enforce its patent on LZW compression, the technology used in GIF files (compression seems to be a recurring patent problem). GIF, though popular, was hardly the de facto standard for images on web pages. The solution, quite simply, was to stop using least in places UNISYS could see. MP3, however, is the de facto audio software standard (though others do exist, but MP3 is far more established than GIF ever was). On a continuum of "badness," what would be worse than the MP3 patent would be if Alcatel stepped forward with a patent on a critical portion of the TCP/IP networking standard.

This, in a nutshell, is the problem with software patents. Software ideas are frequently built on or around other software ideas, and they frequently get mixed up with other types of software ideas in ways a sewing machine hardware idea would not get mixed up with a toaster idea. Playing back music is one of those fundamental functions humans will do whether they are driving a Sherman tank, using their sewing machine or writing a spreadsheet. That means music-related software ideas have a potential to wreak havoc in many segments of the marketplace.

Start to imagine how many software ideas are used in a single program, and imagine that each and every one of them could have been potentially a patented idea. Software development could easily be brought to a screeching halt were even small numbers to be owned by aggressive patent owners.

If such ideas would not be developed in the absence of patents there would be some justification for the damage. As I explained in that article from 2003, however, it is in the nature of software to require new ideas, and they are generated and reused at such a rapid pace that they MUST happen whether or not patents exist if you do any kind of software at all. All patents do is insert extreme risk into the software development process, as there are so many potential patents that any kind of software is at risk.

Personally, I think this verdict will get overturned, as it seems insane to penalize companies who are following the rules. Microsoft thought they were properly licensing the patents for MP3, and it seems weird to claim they really didn't just because there is a late-developing difference of opinion between Fraunhofer and Alcatel over who, exactly, gets to charge companies for the right to use the package of patents associated with MP3. Whatever the case, I wonder if this is causing Microsoft executives to think long and hard whether to use their now considerable lobbying power in Washington, D.C. to get patent laws changed (I say "now considerable," as before the antitrust case filed against them in 1998, Microsoft spent almost no money on government lobbying).

Consider the case of EOLAS. Losing the case with EOLAS has forced Microsoft to do goofy things in IE to activate embedded controls because EOLAS, apparently, owns the "idea" of software plugins in user interfaces (or is it just web browsers, I'm not sure; I could look it up, but that would waste two minutes of my life looking up something completely stupid). That cost Microsoft $520 million, or about a third of the amount Alcatel was just awarded for this "infringement."

I never thought this would be the case, but there may be Microsoft executives sitting in offices in Redmond right now hoping that the current case being argued in the Supreme Court that pits Microsoft and its ally, the Free Software Foundation (yes, hell has frozen over) against AT&T will overturn the foundation for software patents in America.

Wouldn't that be interesting. Alcatel wins a $1.5 billion judgement, only to have the verdict overturned because software patents are declared invalid by the Supreme Court.

Not likely, unfortunately, but one can dream.

[Side Note:  Does it seem weird to anyone else that a jury would decide a case like this?  I see some sense to juries in criminal case (though modern forensic science makes even that difficult), but in cases poring over the finer points of patent law?]

Topic: Patents

John Carroll

About John Carroll

John Carroll has delivered his opinion on ZDNet since the last millennium. Since May 2008, he is no longer a Microsoft employee. He is currently working at a unified messaging-related startup.

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  • No Patents?

    Let's look at a world without software patents. ANY greedy (person/corporation) can just take anything of value(*), distribute it cheaply and make a buck, while the actual developer is stuck trying to pay off his development costs. That'll really help with "openness" won't it?

    Steve G.

    (*)software wise, of course...
    • Re: No Patents?

      [i]...the actual developer is stuck trying to pay off his development costs.[/i]

      Yeah the drinks those cocktail napkins came with are expensive.

      none none
    • Patents...

      ... are designed to protect technological innovation. Software is a [i]technique[/i] and not a [i]technology[/i]. Patents should not apply to software. The child-like tantrums of the patent-shills are easily disposed of...

      [i]"Let's look at a world without software patents. "[/i]

      Yes - let's do that. Cast your mind back to the time before 1991. That was a world without software patents and it functioned very efficiently. Companies such as Microsoft, Borland and Adobe got started in that patent-free environment and rose to prominence.

      [i]"the actual developer is stuck trying to pay off his development costs"[/i]

      Yeah - that's why Microsoft, Adobe, etc never made any money. NOT.

      [i]"ANY greedy (person/corporation) can just take anything of value(*), distribute it cheaply and make a buck"[/i]

      No they can't. Copyright infringement carries heavy penalties. If OTOH they put effort into developing their own version of the software, if it is a better version it will sell well. If it worse it will tank. That's business in a healthy, non-stagant, software-patent free economy.
    • the world is free of software patents apart from the US

      Three times it's been tried in the EU, and it's been thrown out every time.
      The only place on earth to my knowledge where there are software patents is the US.
      That's working well....
  • Tech companies need to step up

    They've been getting soundly abused by much smaller industries who are better than them at lobbying our government. The relatively tiny entertainment industry wields vastly more power in Congress than the much larger (10 times by the last estimates I saw) electronics industry. Because they lobby more effectively, David is essentially controlling Goliath.

    I'd love to see the tech companies put more cash and effort into lobbying for their rights as well. I'd love to see them cut through so many of these awful laws that hinder innovation.
    tic swayback
  • Re: Software patents and the dependency problem

    All good reasons to abolish software and business process patents. But this is not the case that's going to do it.

    Microsoft waited until late in the appeals process before raising the issue of the legitimacy of sopftware patents. It's too late. The court's not going to visit the validity of software patents this time.

    Maybe next time?

    none none
  • HUH

    Sewing not Sowing....argh.
    • Fixed

      John Carroll
      • I don't know...

        ...I assumed you were talking about some sort of farm machinery used for putting seeds in the ground.
        tic swayback
  • If the decision doesn't get overturned,

    what would Microsoft do then? Would it simply continue to license from Alcatel, Fraunhofer, or whoever is the MP3 patent holder of the week, or would they do like they did with EOLAS, and remove the "infringing" technology so they won't need to bother with that patent holder(s) again?

    The latter option may not be so bad. They still have their own audio compression format WMA to fall back on, since it is supported on many audio players(save for iPod). Another option, while not as supported, is to replace MP3 with Ogg since the compression and quality of Ogg is a bit better and it is freely licensed(and it should be noted there are MP3 to Ogg converters out there to transfer users' music libraries).

    P.S. - As for your side note John, yes I agree it's weird that a jury, not a panel of judges, tried this patent case. A panel of judges would easily have seen that Microsoft was playing by the rules would have told Alcatel and Fraunhofer to settle their patent ownership problem.
    Tony Agudo
    • It might actually do us all some good...

      ... in the long run if the decision is [b]not[/b] overturned. I've thought for some time that a "thermonuclear" software patent case is needed to burn out the whole silly infestation.

      One or two massive penalties, maybe a big bankruptcy and users losing facilities might just focus the minds of US politicians. As for the EU, we're still fighting against software patents over here.

      Common sense does not seem to prevail regarding software patents. Anyone with any wit at all can see what a stupid idea they are.
    • Don't be silly

      Dropping mp3 would lose Microsoft the teensy marketshare they currently have in digital music. MP3 is the file format of most common use. Do you really expect everyone in the world to convert all of their files just to save MS some hassle?
      tic swayback
      • "If" the decision's not overturned,...

        then dropping MP3 support out of the box [i]is[/i] an option, tic. Users could still get MP3 playback, just not from a Microsoft product, or as a third-party plugin. OTOH they could just keep paying one or both companies to keep them off their backs, as that would cause little or no disruptions to users.

        But I think it's fairly likely that the decision will be overturned, since Microsoft [b]was[/b] playing by the rules, but Alcatel should settle the patent ownership issues with Fraunhofer. That's the source of this problem, I'm sure you agree.
        Tony Agudo
        • What about Zune?

          So your solution is to drop the entire Zune product line? You can't seriously be suggesting that MS could sell an mp3 player that can't play mp3's.

          ---That's the source of this problem, I'm sure you agree.---

          Absolutely. MS is the good guy in this case.
          tic swayback
          • Not just Microsoft, sadly...

            Remember, it's not just Microsoft feeling the heat from Alcatel's flamethrowing. Every company out there that licensed MP3 from Fraunhofer is worried about Alcatel's next move. Suppose they actually do go after Apple, Intel, or any other major company on Fraunhofer's list. Then there may very well be a backlash in the form of gradually abandoning MP3 for better formats, as well as countersuits. We may just have to bite the bullet if Microsoft and the FSF(1) doesn't prevail.

            (1) John was right: hell has frozen over, but at least there's some good ice skating down there ;)
            Tony Agudo
          • More likely

            If a court has upheld this decision after MS' appeal, other companies will be quick to settle with Alcatel (and for lower amounts than courts would award). Life will go on as before. No matter how much a company would like to change the de facto standard file format, it's not something they can just do at will. You might as well try to get people to stop using .doc in favor of ODF. If MS could get rid of mp3 and make everyone use WMA, don't you think they'd have done this by now?
            tic swayback
          • other companies will sign up for licencing and life will go on as usuall...

            i'm with you tic...

            sucks to be MS but Alcatel-Lucent knows that the best thing to do is to broadly license it's IP and ride this pony over the long haul... this MS thing is likely just a lesson of what can happen to you if you don't sign up (remember what happened to RIM?)... not sure why John here has his panties in such a twist.. Alcatel-Lucent gets a new revenue stream and life goes on... no big deal.
  • If you with fire ...

    You can get burned ...
    You must agree on this one John: Another case in favor of OSS approach to this problem.
    After being unfairly and systematically accused of "Linux IP infringement ?!?!" the shot backfired ...
    I defend the OSS solution for Patents. Simply End patents in Software.
    Promote Copyrights. And the adoption of Open-Standards on infrastructure and wide-spread functionalities.
    Yes John, it includes the -> ODF :)
    Patents do curb the innovation path. They block it.
    Their exclusive nature is the main problem.
    If in the development path there is a patent somewhere in the way that can cause problems. Actually stall your development.
    This problem of total exclusion is a real issue for development.
    As well as the abuse over generic patents that where inadequate attributed.

    To clear doubts over this issue lets explain how patents works:

    If I have a patent over, for example a format to write files on disk. No one can used My format to write files on disk for anything else unless I concede that right.
    If someone defines a software with a enterprise application that writes files on disk with my patented format I can demand licensing rights to use the format.
    And in many ways this curbs innovation!
    Every time that someone uses a current framework Almost Every thing from network services to a huge number of protocols is inside! Network protocols and services, file systems, authentication, database access, etc etc etc.

    If someone as a patent over a Spoon, no one can make a foldable/portable spoon without paying the guy that patented the spoon in the first place! No one can actually make any spoon or use it !!!

    This exclusion principle on patents is the problem!
    And the more generic the patent the worst! The cases are so many it is difficult to name them all.
    As no one can control the patent approval process the ideal would be not having patents, but only copyrights in software.
    Specially in Software this is a very important issue.
    The trick is indeed the problem of how the patents work.
    And if one starts the Patents War it will be complete chaos! With multiple filings one after the other in a non-stop company collective industry-wide genocide.
    IBM as a huge number of patents, from the basic IBM PC hardware to almost every other aspect of todays software operations.
    More important, they have a huge experience of dealing with this cases in court, and getting out winning ...
    And now John ... who was the company that started the IP "infringement" saga?

    About the TCP/IP.

    -> It Only proves the Need For Open Standards.

    "On a continuum of "badness," what would be worse than the MP3 patent would be if Alcatel stepped forward with a patent on a critical portion of the TCP/IP networking standard. "

    TCP/IP is an Open Standard, they can not do nothing.
    Much worst is if the BSD licensed code owners that Microsoft used to make is own TCP stack do change the licensing and demand from Microsoft cash ... it would be Far Worst then the 1.52Billions ...

    And the problem with the development path that can stuck any project as todays developments are so interconnected.

    About the verdict:
    " Wouldn't that be interesting. Alcatel wins a $1.5 billion judgement, only to have the verdict overturned because software patents are declared invalid by the Supreme Court."

    I am not an expert in Law, much less USA patent law, but according to CNBC specialists Lawyers the case looks very dim for Microsoft.
    First: Laws changed by the Supreme Court decisions are not backward-effective (there must be a legal technical word for this).
    If the patents law is "revised" (sorry for the lack of law knowledge) by order of the Supreme court it Only affects the Patents After that Supreme Court ruling.
    As patents all have a maximum time of validity they will dry over in 10 years ... only after that is the Supreme court rule fully valid to All patents.
    Second: It is very difficult to over-rule a sentence by a Jury.
    Third: Microsoft can not contest the value applied, they can only try to change the sentence (not very likely and it will take time and money ... )

    • If you play with fire ... sorry

  • Incorrect, and Mixing Issues

    John, while perhaps your sewing machine and sherman tank are a nice metaphor in terms of image, you're dead wrong when it comes to innovations that are present in seweing machines not being protected when used elsewhere for other application. If the functional achievement of an innovation is the same, regardless of whether it's a sewing machine or a sherman tank, the Doctrine of Equivalents specifically covers those applications. The FESTO case history tried to overturn DoE but in large part the final result was that it remains mostly in tact. I'm sorry to say, but that reality diminishes your argument considerably, and leaves you with nothing much more than wishful thinking.

    Next, the two sentences,

    "Playing back music is one of those fundamental functions
    humans will do whether they are driving a Sherman tank,
    using their sewing machine or writing a spreadsheet. That
    means music-related software ideas have a potential to wreak
    havoc in many segments of the marketplace."

    are a complete non-sequitur. Unless you mean to intimate that sewing machines will one day have built in music-playing functionality, and therefore the market-segment that includes sewing machines could be disrupted or distorted because of the influence that software patents will now have on sewing machines, what you're saying here doesn't mean anything, and has no bearing "on many segments of the marketplace" at all. What kind of writing is this? It's either unclear and incomplete, or unjustified and wrong-- take your pick. Either way it's bad journalism, but I guess you can hide behind the fact that it's a blog and not real jouranlism anyway-- because if it was, you would have done some homework and avoided making the first mistake above when you ignored the Doctrine of Equivalents.

    Next, Microsoft remains a cunning corporate that puts greed and arbitrage above honesty and integrity. It is not a good corporate citizen because its tactics would never pass muster in a deal between small businesses-- it is only because Microsoft knows it can defend itself and tie things up in court that it goes through with some of its decisions. A close reading of the AT&T case shows that Micrsoft has no real case, that it is using and installing AT&T's patented component software, intentionally in a physical location that was chosen because it was an attempt to skirt US Law, but because there is ambiguity in the law on the books that was written before real globalized logistics came into being, Microsoft is able to conjure smoke and mirrors arguments that introduce uncertainty into Software Patent law in general. That's both wrong, and unconscionable, and Microsoft can hardly be considered a friend to the Software industry-- it is only because it is the biggest player that it can woefully disregard the very rules that made it possible for MSFT itself to get big.

    The base case should remain that Microsoft is intentionally trying to screw AT&T, and that it's lack of integrity in trying to do so should earn it a punitive bill with treble damages because it is knowingly and streatgically pursuing intentional infringement.