Patent infringement lawsuits have become a very real concern for independent developers and big companies alike, a situation highlighted by the growing number of high-profile courtroom battles over intellectual property.
At the moment, for example, Oracle has sued Google over Android's implementation of the Dalvik virtual machine, and Apple is fighting a number of smartphone competitors in several countries over patents related to the iPhone.
The concern is that broad software patents, and the risk of litigation these bring, could stifle innovation by developers. With this in mind, ZDNet UK sat down with Nathaniel Borenstein, one of the inventors of the MIME email protocol, for his take on the matter. Borenstein is chief scientist at cloud email management company Mimecast, and his background includes eight years as a distinguished engineer at IBM.
Q: I understand Mimecast is actively working on technology to allow it to build email analytics capabilities for organisations?
A: We're at the very beginning stages of it. [In October] we filed a patent application, so we're at least working on it that much. I wouldn't say we've done a lot of coding yet or a lot of decisions about what to deploy. We're the classic small-to-middling company growing too fast to do too many new things. It's not going to happen right away — we're still fleshing out the API potential.
What did the patent application cover?
It's basically a business model patent, filed in the US, on cloud-enabled applications. It's very broad. I have a pretty deep ambivalence in that I think the patent system is totally screwed up and broken. All sorts of overly broad and inappropriate patents are granted, and this could be another one of them.
Well, this sounds like a pretty broad one itself...
If we didn't file it, somebody else might, so I'd much rather we file it than one of our competitors. I'll be the first person up there to explain why the patent system shouldn't allow things like this, but it does.
Why do you think these kinds of general patents shouldn't be allowed?
The patent system was designed to foster certain kinds of innovation by creating a protected time for limited commercial monopoly. The system has evolved where that time has become inappropriately long, particularly in our industry.
So you think it should be more like the pharmaceutical industry, where the time frames are shorter?
Well, in the US they still have a longer period, but it's more appropriate for them. First of all, they have to spend billions of dollars to create the drug. Second, it's really easy to see if someone is violating their patent: look for the molecule — it's that simple.
The patent system is totally screwed up and broken. All sorts of overly broad and inappropriate patents are granted.
With software, it's all very vague and general. You can say, "Well, here's a patent that uses the same words as you use in your product, so you're infringing on it." They don't actually say that, but that's essentially what they are saying. That leads to a horrendous waste of resources like the Apple-Google battle, which is actually Apple versus Google, Samsung [and] HTC, at least.
It's a terrible waste of resources. It's not appropriate to give 17 years' protection for a concept as broad as the iPhone. Do you really want them to have a monopoly on smartphones for 17 years? I don't think that's the kind of thing people had in mind with the patent system. If you can't make money on smartphones in three years, then you probably aren't doing it right.
The business model patents are even worse. My favourite is that there is a patent on a business process in which you patent things about business processes and then sue people that infringe them.
That's nuts! And that was granted?
No kidding! That was granted!
The people that get that, what do they do with it? It's a very tricky business. You don't even try to enforce it, per se. Here's the thing: once you get into a patent battle, the winner of the battle at a first pass is normally determined by who has more money for lawyers. It's only when it's closely matched, like with Apple and Google, that it gets to a higher level.
If you have that patent, the first thing you do is...