Summary: The SCOTUS gets another push toward the ending of software patents
The Electronic Frontier Foundation (EFF) civil rights organisation, the Computer and Communications Industry Association (CCIA), and open source company Red Hat have urged the US Supreme Court to provide further guidelines on the patentability of software and computer-based inventions. They have asked the Supreme Court to clarify the point at which an idea becomes too abstract to be patented, saying that current legislation in this area is inconsistent, confusing and impedes progress in the internet and computer fields.
Nathan Myhrvold, the Microsoft veteran who founded the patent-trolling giant Intellectual Ventures, loves to complain about the “culture of intentionally infringing patents” in the software industry. “You have a set of people who are used to getting something for free,” he told Business Week in 2006.
Myhrvold is right that patent infringement is rampant among software firms. But in demanding that this infringement stop, Myhrvold isn’t just declaring war on what he regards as Silicon Valley’s patent-hostile culture. He’s declaring war on the laws of mathematics. The legal research required for all software-producing firms to stop infringing patents would cost more than the entire revenue of the software industry. Even if firms were willing to pay the bill, there simply aren’t enough patent lawyers to do the work. Firms infringe software patents because they don’t have any other choice.
If a real estate developer wants to build on a particular piece of land, she first must figure out who owns the land before she can negotiate a contract and start construction. Most of the time, this is easy. The landowner can be readily identified in a public records office.
In principle, a software developer starting a new project faces a similar problem. He needs to know if the software he is planning to create will accidentally infringe on anyone’s patents. But whereas looking up who holds claims to a particular piece of land is easy, finding out who, if anyone, holds patents related to a particular piece of software is difficult and expensive. It’s so difficult, in fact, that the vast majority of software developers don’t even try.
Over the last few years, wide swathes of the game industry, and the downloadable app industry in general, have been revolutionized by a single idea: letting people play for free while charging some of those players for in-game items. Now, it seems, a shell company is claiming that it has sole ownership of that idea, and is going to court to stop a wide range of game companies from using it.
Gametek LLC has filed a lawsuit against 21 of the biggest companies in social gaming, including Facebook, Zynga (Farmville et al), Electronic Arts (The Sims Social), Wooga (Diamond Dash) and 6Waves (Ravenwood Fair), as well as separate suits against iOS game developers such as Backflip (Ragdoll Blaster) and Gameview (Tap Fish).
Patent trolls usually use software patents. By getting rid of the latter a lot of the former can be eliminated too. Think how many jobs would be destroyed: parasites like patent lawyers and patent trolls will need to give room (and income) to real, producing developers. █