The problem with US patents

comment "The system is indeed broken", opined ZDNet's David Berlind on the subject of software patent in the US.

comment In response to my recent columns on how OpenOffice licensees could be infringing on Microsoft's intellectual property, and how patent issues were also a factor in the demise of the world's most promising hope for an anti-spam standard, many of ZDNet's U.S. readers have written to express their disgust with the patent system. European readers have written to express their bewilderment with U.S. patent law.

How, ask readers from across the pond, can some software companies get in the way of other software companies and standards-setting bodies like the Internet Engineering Task Force?

Here's my two cents on the software patent controversy.

In the U.S., software developers cannot only copyright their source code; they also can patent the techniques and processes (technical, business, or otherwise) that the source code embodies. If I'm the developer, such "intellectual property" is an acknowledgement by the government that I was the first to write and/or invent such a thing and am therefore entitled to protect my invention from being copied or stolen (aka, "infringed on").

If I have a patent and someone else writes software that copies my invention, I have a legal right to seek monetary damages from that person as well as anybody selling, distributing, or using the copy of my invention without my approval. (This legal right is usually codified into a software license.) If OpenOffice infringes on a Microsoft patent, Microsoft can seek damages from anyone who previously distributed or continues to distribute Microsoft's invention without Microsoft's approval.

While Microsoft's inventions contained in MS-Office, to take just one example, probably do merit a patent, there's plenty of evidence elsewhere to suggest that U.S. intellectual property law is broken.

Patent laws convey a message: If you invest a significant amount of time, energy and money in an invention, someone else can't simply come along and profit from your investment without paying you. Patents guarantee that if someone gets to recoup that investment, that someone is you. It seems fair. Without that guarantee, you might not bother to make the investment in the first place, which in turn undermines an important incentive to innovation. The potential for personal enrichment and, in the case of publicly held companies, stockholder value, is a strong incentive that encourages innovation in many fields. On these grounds, I agree that people should have a right to protect their inventions from being copied.

Patent the mundane?
On the other hand, some of the so-called inventions receiving patents are either too obvious to deserve a patent or are so simple, that the enrichment possibilities (should a patent be awarded) are entirely disproportionate to the investment that produced the invention. In an open letter to Amazon founder Jeff Bezos dated February 28, 2000, O'Reilly & Associates' CEO Tim O'Reilly wrote "One-Click ordering is a clever marketing slogan. However, your patent fails to meet even the most rudimentary tests for novelty and non-obviousness to an expert in the field. The fundamental technology on which Amazon's one-click implementation is based is the use of "cookies", a small amount of data placed on client computers to add state and session management capabilities to the World Wide Web, which was introduced in 1994 into Netscape Navigator by Lou Montulli, Marc Andreesen, and others, at the urging of none other than Vint Cerf. The technique had been deployed on thousands of sites well in advance of your 1997 patent application." I agree.

Many patented ideas required little more than half a brain, five minutes of uninterrupted privacy, a napkin, and a pen for scribbling. For example, on September 2, 2003, the U.S. Patent and Trademark Office awarded a patent to David and James Griner for a process that requires nothing more than off-the-shelf components that you can buy at any computer story to record a live performance and distribute CDs to concert goers as they exit the concert hall. Doh. Perhaps I should call former LapLink CEO Mark Eppley to tell him that he infringed on a patent (which now belongs to Clear Channel) by burning and giving out living recordings on CD as each band completed their sets during a party he threw in the Summer of 2003.

For modems, Dennis Hayes came up with the idea of the command mode and the "AT command set" that became the basis of Hayes-modem compatibility (a requirement for any modem's marketability to this day) in precisely this way while eating breakfast in a diner. Unlike other "napkin-back" inventors, Hayes was a brilliant man who invested significant time and money in making his simple concept work, and deserved the patent and modest US$1 per modem sold royalty that he charged. As exemplified by Hayes' invention, software is often deserving of a patent. Because of the many examples likes Hayes', I disagree with those who propose that software be made unpatentable.

But then, there are cases where, beyond the legal and clerical fees for filing a patent application, no investment subsequent to the "napkin stage" was required. In some cases, even the napkin stage is bypassed and patent applications are filed by third parties for techniques that were so apparently unpatentable by the first people to use them--either the technique was too obvious or seeking a return on zero investment seemed too absurd--that no one ever bothered to seek a patent until a third party saw the chance to capitalise. Though it was probably filed more to make and example of how badly the patent system is broken than for profit, the now famous patent 6,368,227 for swinging sideways on a swing hanging from a tree comes to mind. In the software realm, an outfit known as the British Technology Group approached several companies including Microsoft in hope of extracting royalties because of its claims to hold patents on downloading and updating of software. This is pure opportunism that the patent system was not designed to encourage or protect.

The patent system suffers from one more serious problem. Patents have the potential to prevent access to something essential to the greater good. Looking outside the software business, I'm thinking of life-saving medicines to which only the privileged have access, In the software business, I would argue that an anti-spam standard falls into this category.

The system is indeed broken. How it can be fixed in a way that truly rewards those who are deserving while denying rewards to those who are undeserving is a perplexing problem. But one thing is for sure. It needs to be addressed.