4 May 2011

Who Can Win The Cold War Of Software Patents?

Looking out for Bilski: software patents v. FOSSphoto © 2010 opensource.com | more info (via: Wylio)

You know it already: Google got hit by a software patent (5,893,120).
Well, that was the decision of the court at first instance and Google is expected to appeal it, but nevertheless it must have hurt. Not the loss of USD 5 Million which Google can easily reimburse out of its petty cash account.
It is about more, far more.

According to Florian Mueller of FOSS Patents the decision is highly significant and will put all of Linux into doubt. On the other side there is Dana Blankenhorn who, citing the CTPN decision, disagrees.

Either way, the question here is why does a case like this attract such attention? I guess the reason lies in that it deals with the highly controversial issue of software patents…

What Are Software Patents All About?

A citation from Van Lindberg’s book  Intellectual Property and Open Source provides for a very good answer: Patents are the most expensive and powerful weapons in an IP arsenal. For some companies, particularly pharmaceutical companies, patents are the lifeblood of invention and the key to profitability. For other companies, particularly software companies, patents are the rough equivalent of madly proliferating nuclear weapon arsenal.

It is obvious: the current legislative framework in which software companies work and compete, allows the patenting of software-related inventions. As a matter of fact, software companies appear to amass software patents not to market and sell them, but to either drive a competitor out of business or to prevent that their competitors drive them out of business.

Having read this, you truly felt the frosty breeze of the Cold War, did you not?

Let me even further amplify this feeling: the Nuclear Non-Proliferation Treaty (NPT) signed during that time between the nuclear powers stands a good comparison to the nowadays patent cross-licensing agreements entered into by technology giants such as Microsoft, Apple, HP and Google.

But even when a nation has a

Powerful Nuclear Arsenal

it is still vulnerable to non-conventional attacks or asymmetrical threats of non abiding adversaries. Last two decades’ terror acts were a good demonstration thereof. They were not performed by the armed forces of “competing” nations, but rather by decentralised rogue organisations.

Likewise, Google’s participation in cross-licensing agreements or patent pools could not hold it harmless from the claims of Bedrock Computer Technologies (BCT).
But who or what is BCT?
It is not a technology vendor, but a so called non-practicing entity (NPE). Or a patent troll, if you prefer. Other such trolls that have gained public attention in recent time are NTPi4i and Acacia.

The end of the Cold War was accompanied by the rise of rogue organisations I mentioned above.
By the same token, patent infringement proceedings under the involvement of patent trolls emerged in the last couple of years. NPE v RiM, Software Tree (an Acacia affiliate) v Red Hat or i4i v Microsoft, to mention some.
Is this a sign that the software patent cold war is over? Well, not really and Nokia’s patent infringement lawsuit against Apple is a good demonstration. Will there be a winner? I strongly doubt it.

What does it mean? It means that the economy simply needs

Another Solution

Something in the sense of the SALT and START treaties which heralded the end of the Cold War. In addition, the economy needs protection against patent trolls whose objective is not to drive innovation but rather the opposite of it.
We as individuals and consumers have also a great interest in finding a solution since we pay the price of its procrastination.

The US Supreme Court missed its historical opportunity In Re Bilski.
Will it err also in i4i v Microsoft?

I hope not and will therefore provide it with a piece of advice, thereby citing (a portion of) the statement of Adobe’s Douglas Brotz during a hearing before the USPTO:

Let me make my position on the patentability of software clear. I
believe that software per se should not be allowed patent protec-
tion.  I take this position as the creator of software and as the
beneficiary  of the rewards that innovative software can bring in
the marketplace...
The problems inherent in certain aspects of  the  patent  process
for  software_related inventions are well_known, the difficulties
of finding and citing prior art, the problems of obviousness, the
difficulties of adequate specifications for software are a few of
those problems. However, I argue that software should not be  pa-
tented,  not  because it is difficult to do so, but because it is
wrong to do so.

 

Comments (12)

  1. 4 May 2011

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  2. 4 May 2011

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  4. 5 May 2011
    Ivailo Sokolov said...

    An excellent article!

    I for one think that in this cold war the “dark side”, i.e. maniacal software patent enforcing is ultimately bound to lose again but this will take time. Historically, before massive network effects became the inherent norm for nearly all software distribution models, software patents may have made some sense, however little. Then, with the spreading of the personal computer and the Internet, software patenting got out of control. Frantic patenting was driven by very little understanding of the outcome of pumping up that bubble, both by lawyers and software companies. Perfect early examples are some absurd, registered and claimed patents by Apple, Amazon and Microsoft. Now that they realize how self destructing and limiting this is to the industry they are forming alliances to counteract. Unfortunately, the legal system is not nearly as flexible.

    As I’ve said before, only the smallest percentage of patented “software inventions” are actually worthy of a patent,e.g. a breakthrough graphic or data processing algorithm implementation, i.e. things that require lengthy and costly research. But then again, who is competent to differentiate between that and some trivial web programming techniques? The courts? I think not. It may be interesting for you to write an article comparing US and EU software patents differences.

  5. 6 May 2011

    I would say that software patents are already cast aside to a large degree by rogue organizations. There is so much freeware and shareware out there, and it is only growing. THat is not to say there are not plenty of patents still being fought over, but so, too, there are still many wars and skirmishes still being fought.

    • 6 May 2011
      Emil A. Georgiev said...

      David,

      thank you for commenting here!

      Precisely, there are many battles and wars fought in the software world out there and we all pay the price therefor – be it by means of unreasonably high royalties or, which is even more inconvenient for the economy, through legal uncertainty.

  6. 7 May 2011

    [...] Who Can Win The Cold War Of Software Patents? « The Reguligence Weblog [...]

  7. 14 June 2011
    Emil A. Georgiev said...

    An update according to a recent post on FOSS Patents: Apple and Nokia settle their dispute – http://bit.ly/mpNoMf

    • 7 July 2011
      Emil A. Georgiev said...

      Tim,

      thank you for your comment!

      It is a pure madness for what Apple has been granted utility patents: “providing translucent images on a computer display”, volume control and “autodetecting devices being plugged into a headset jack”…

      In the end and, provided that Apple prevails, I believe that Samsung will work around Apple’s patents, however incurring additional costs, which we as individuals and consumers will have to pay.

  8. 16 August 2011

    [...] Who Can Wiin The Cold War Of Software Patents? | The Reguligence Weblog [...]

  9. 21 December 2011
    Nannie said...

    Heya! I understand this is sort of off-topic but I needed to ask. Does building a well-established website such as yours take a massive amount work? I’m brand new to running a blog however I do write in my journal everyday. I’d like to start a blog so I will be able to share my personal experience and views online. Please let me know if you have any ideas or tips for new aspiring bloggers. Thankyou!

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