WE LIVE on the verge of changes to the patent law. It is up for us to help determine whether those laws or amendments make things worse. Earlier today we covered the situation in different parts of Europe and we finally come to discussing the software patents situation in the United States and the rest of the world in general, having covered the situation in other, very specific countries. Here is what Ubuntu's founder (based in the UK) had to say on the subject this week: "The patent system is often misunderstood. It’s sold as a way of giving the little guy an opportunity to create something big … when in fact patents don’t really work that way at all.
In a nausea-inducing post, the US Patent and Trademark Office is trumpeting on its website the millions of patents it has issued. As the short version states: “The USPTO has issued millions of patents over the years. Number 1,000,000 was issued 100 years ago this month. Number 2,000,000 was issued in 1935. Take a closer look at these “million milestones” from patent history.” This disgusting puff-piece, of course, ignores the horrible cost of the patent system, and naturally, conflates innovation and invention, with patenting.
The word “extortion” is often used by patent infringers (and their apologists) to describe licensing activity carried out by patent owners. In reality, however, the patent owner often does nothing more than exercise the basic right of enforcing a patent through civil litigation. Some suggest that these patent owners rely on dubious arguments or enforce patents that are likely invalid. However, patents enjoy a presumption of validity as a matter of federal law, and characterizing a lawsuit as frivolous requires more than just disagreeing with the infringement theory (which often turns out to be the case). While some patent owners might bluff, actually resorting to litigation requires convincing attorneys to put their reputations on the line by affirming that an adequate investigation was conducted.
Lobbying for abolition would be way cheaper. And building an arsenal only works for big guys, does not solve trolls
To the die hard advocates it isn’t about the quality of the patents being issued or the term of exclusivity that is being given. It is about very existence of patent rights for software – period.
If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.
A few years back, there were some stories about how Google's legal department was willing to take on big important issues, not just because they would help Google, but because it would strengthen the overall internet and innovation. That obviously would help Google too, but there was a sense that the company would fight for issues beyond just those that impacted Google. In recent years the company seemed to shy away from some of those fights, so it would be interesting to see if fighting against bad patents brings Google back around.
Of course, as some are noting, even as Google is getting vocal, it appears to be pulling some punches -- focusing on the specific patent problems it faces, rather than speaking out against the fundamental problems of the patent system itself. In fact, nearly a month ago, Glyn Moody wrote an excellent piece explaining how Google's best line of attack here would be to go after the very concept of software patents, something the company hasn't shown a willingness to do just yet.
But it's not just about patent owners – some perfectly justified – grabbing themselves a chunk of the wealth generated by the technology industry. There's much industry infighting, too. Oracle is suing Google over features of the latter's mobile operating system, Android. Microsoft is also suing Motorola over Android-related issues. Yesterday Apple won a suit in a German court that accused Samsung of copying of the iPad's "look and feel" for its Galaxy tablet. Samsung is gearing up a response amid its much-hyped Galaxy 10.1 tablet being seized by EU customs officials as a result of the case.
Apple is also accusing HTC of infringing 20 of its iPhone-related patents; meanwhile, HTC is countersuing over five patents of theirs.
With the number of US patent lawsuits rising by 20 per cent in the first six months of this year over the same period last year, many people are questioning whether innovation is taking a back seat to litigation. In the world of music and art, copyright is usually a black-and-white issue; you've either copied someone else's work or you haven't. But patents provide a certain amount of scope around your idea and that grey area has become a prime target for legal disputes. "The Patent Office examiners determine the scope of an allowed patent," says Simon Davies, chairman of the computer technology committee of the Chartered Institute of Patent Attorneys. "They don't always get it right."
The accusation levelled against the US Patent and Trademark Office is that they've issued too many patents with too broad a scope for too long. Notable patents from recent history include a "method of refreshing a bread product" (basically toast) and the crustless peanut butter-and-jam sandwich, both approved in 1999.
It's certainly beginning to feel like we're hitting something of an inflection point in getting people to realize just how incredibly broken the patent system is. There has been a flurry of mostly excellent news stories from a variety of sources picking up on this and detailing specific cases of a broken patent system. The This American Life episode certainly helped kick off a lot of attention, but it's definitely been growing in other areas as well. The latest entrant into the field is an excellent article from Ben Popper over at The Observer's BetaBeat site, which focuses on one specific smaller patent troll, a company called IQ Biometrix, and what it's done over the years... which is basically nothing productive. However, it does have two hugely questionable patents: 7,289,647 for a "system and method for creating and displaying a composite facial image" and 6,731,302 for a "method and apparatus for creating facial images."
After months of dead-end negotiations over raising the federal debt ceiling, President Barack Obama walked into the East Room of the White House on June 29 to demand action. The stalled talks not only threatened the integrity of the nation's debt, he said, they reflected a lack of purpose about solving economic problems and improving the plight of middle-class families.
"Many people are still looking for work or looking for a job that pays more," Obama said to a scrum of reporters. "There are more steps that we can take right now that would help businesses create jobs here in America."
The first item on Obama's list of immediate, job-creating congressional actions was the passage of patent reform legislation.
"Right now, Congress can send me a bill that would make it easier for entrepreneurs to patent a new product or idea, because we can't give innovators in other countries a big leg up when it comes to opening new businesses and creating new jobs," he said.
Obama was jumping into a drawn-out Capitol Hill battle, one that has never been particularly concerned with creating jobs or alleviating unemployment, despite what recent rhetoric might suggest. Lawmakers have spent nearly a decade jockeying over intellectual property rules in what has become a sprawling corporate feud -- one that currently involves nearly 800 registered lobbyists.
The suit was filed on August 9, 2011, in the US District Court for the District of Delaware against Adobe Systems, Inc., Alcatel-Lucent USA, Inc., IBM Corporation, Juniper Networks, Inc., NetApp, Inc., Red Hat, Inc., and VMware, Inc.