GregHowley.com

Software Patents: An Industry at Risk

October 4, 2004 - -

I just found a great article on software patents. The article as a whole is rather dry, but section 1 speaks volumes.

1. THE THREAT POSED BY SOFTWARE PATENTS

We can best illustrate some of the problems that software patents cause, through the use of an imaginative scenario written in the style of the well-known computer exploration game "Adventure":


Welcome to Patent Adventure V3.4. - All Rights Reserved 1994.


You are the CEO of AcmeSoft - a fairly successful software company.

You are at your desk. Suddenly the fax machine rumbles...

Command> READ FAX

It's from SharkTech! They're claiming that your company's product "Acme Professional" violates their software patent "Distinguishing Nested Structures by Color". They want 1% of your wholesale price in royalties.

Command> GIVE ROYALTIES

Now they want 5%.

Command> GIVE ROYALTIES

That satisfied them. Hmmm, the fax machine is humming again. It's from ParaTech! They're claiming your company's product "Acme Professional" assigns clients to whichever server process is least busy, and as a result want 3% of your wholesale price in royalties.

Command> IGNORE THEM

ParaTech have decided to take you to court. Do you want to settle for 10%, pay $800,000 in legal fees, or circumvent the patent?

Command> CIRCUMVENT

Your programmers say they can't circumvent the patent without hurting performance --- causing you to lose you 30% of your customer base. Do you want to circumvent?

Command> CIRCUMVENT

You've lost 30% of your customers! The fax machine is going again. This time it's from MeanTech. They're claiming your company's product "Acme Professional" violates their software patent on storing document images on a CD ROM along with an automatically generated index, and because they are a competitor, they do not want a royalty. They want you to remove the violating code or stop shipping the product. What do you wish to do:

  1. Ship 400 floppy disks instead of one CD ROM.
  2. Go to court.
  3. Stop shipping the product

COMMAND> GO TO COURT

Legal fees are $600,000. Current funds are $400,000. You've gone broke!

Do you want to play Patent Adventure again?> DEFINITELY NOT


While the above scenario is fictional, it is far closer to the current situation than many in the software industry realize. In reality:

  • IBM holds patent #4,965,765 which covers the use of different colors to distinguish the nesting level of nested expressions.
  • Patent #5,249,290 covers assignment of client requests to the server process having the least load.
  • Patent #4,941,125 covers using a digital camera in conjunction with character recognition software to store and index documents on a CD ROM.
  • And IBM really does charge small companies 1% of royalties to license a single software patent, and 5% for its entire portfolio.

The software patent system is clearly out of control and if not caught soon will change the face of the software industry forever. Two thousand new software patents are granted each year. They are being granted on software technologies as diverse and mundane as file servers and word processors. It is already dangerous to create products containing data compression or public key encryption, and recently major inroads were made in the field of multimedia. Here are some more examples to help give you a feel for the scope of the problem:

  • A spreadsheet in which each cell has a "next cell" attribute defining the next cell to advance to after having entering data into the current cell. [#5,121,499].
  • A spreadsheet in which a single cell can contain multiple (possibly optional) fields. [#5,247,611].
  • A word processor that has a feature that allows you to specify that a portion of the text should be shaded - such as may be useful when revising a manual - by enclosing the relevant text within commands that turn shading on and off. [#4,924,411].
  • Use of a host independent network byte ordering. [#4,956,809].
  • A parallelizing compiler that estimates the execution time for each of a number of different parallelization conversions and then selects the one that it thinks will be the fastest. [#5,151,991].
  • Simulating the access times associated with a CD ROM by slowing down a hard disk. [#5,121,492].

These are just a few of hundreds of software patents that pose a critical threat to all software developers, large and small. Many more examples are contained in Appendix C. The fact that these patents all cover trivial ideas is significant, but not the only reason for the difficulties. In this document, we argue that the nature of the software industry makes it an inappropriate subject for the granting of patents.

Comments on Software Patents: An Industry at Risk
 
Comment Mon, October 4 - 1:46 PM by tagger
Being an engineer rather than a lawyer, MBA, rock star, actor or politician probably means I'm not qualitied to comment on this sort of thing. What I mean is, people like me simply build and create stuff and are probably far too simple-minded to get involved in discussions and arguments with the perpetrators of The System.

That's the disclaimer -- now, here's my two bits' (two cents buys little these days) worth. I don't think the patent system is to blame here, even though it is pretty screwed up. I believe the real villians here are corporations that regard lawsuits as a revenue stream (i.e. SCO), the lawyers who infest corporate legal departments and the courts who seem to believe that one should be able to patent a raw *idea* rather than a concrete invention.

Patents are intended to protect *inventions*. It seems to me that a computer program is a construct -- more like a book or a musical composition in nature than an invention. Books and music use words and notes to produce constructs that inform and entertain. Computer programs use coded commands to produce constructs that perform tasks. Is a computer program _by_itself_ an invention?

It is confusing. Should I be able to patent my method for hand-sorting beans? No. But, if I build a machine to sort the beans, I can patent the machine, right? If I write a set of instructions for bean sorting, I can copyright the document. If my bean-sorting machine is controlled by a computer program, however, is the program part of the invention? This, it seems to me, is the point upon which the lawyers have pounced.
 
Comment Wed, October 6 - 10:14 AM by Greg
Prime Example
Kodak wins Java lawsuit

This is simply unbelievable. Kodak is claiming that Java, which has been around for a decade, infringes a patent that they purchased in 1997. I don't know much about law, but this sure seems to me like a pivotal case as far as precedents are concerned.

 
Comment Wed, October 6 - 10:52 AM by tagger
The Kodak vs. Sun decision is rediculous. The jury clearly failed to understand the technology.

This is similar to the GIF case, where Unisys (created in 1986 by the merger of Sperry Rand and Burroughs) used a patent inherited from Sperry to club CompuServe and graphics developers over the head and collect licensing fees. They waited years, until GIF was a firmly intrenched de-facto standard, before initiating any action. Many felt this was deliberate.

Java has been around for a decade, and now -- all of a sudden, it would seem -- Kodak decides they own a piece of it?

A mess, to be sure. I, for one, am now totally confused as to what constitutes an "invention" and where the line is between copyright and patent.
 
Comment Fri, October 22 - 2:57 PM by tagger
Sun has agreed to pay $92 million to Kodak before the jury had a chance to make a damage award. Kodak wanted $1.06 billion in lump-sum royalties.