Software Patents Gone Bad

By Steven Vaughan-Nichols  |  Posted 2004-10-05

Software Patents Gone Bad

Open-source and proprietary developers have at least one enemy in common: software patents.

This latest mess with Kodak and Sun is just one of many, many examples of software patents gone amok. In this most recent example, one of Kodaks patents—by way of Wang Labs—covers when applications "ask for help" from another application.

Can you say thats a little broad? I knew you could. Kodak is using it against Java, but Kodak also could use it against Microsoft and its .NET platform.

Kodak says it wont. But I suspect that if Kodaks victory is upheld and the company has a few more bad quarters … well, lets just say I wouldnt be surprised to find a Kodak lawyer arriving at Microsofts Redmond campus.

Software patent law in these United States has become a laughingstock. I may not know the law, but I do know a bad joke when I see one.

Or, well it would be, if it werent so deadly serious.

I know most of you want to read about patent issues the way you do a week-old sports page. Trust me, I want to write about technology, not patent law; but patent law is strangling open- and closed-source software development, so I have to write about it.

It all seemed so funny back in 1999, when started this whole mess by patenting the one-click idea. But now, no one is laughing.

In the past few weeks alone, Forgent Networks has announced that its suing 42 major technology vendors over their use of the JPEG image format; Microsofts Sender ID-related patent proposals helped crush a once-promising way to stop spam; and Microsofts own FAT (file allocation table) patent has, for now anyway, been denied.

As a developer, closed or open source, you dont have the time or skills to look for software patents. For that matter, some experts say you shouldnt look anyway!

"Current U.S. patent law creates an environment in which vendors and developers are generally advised by their lawyers not to examine other peoples software patents, because doing so creates the risk of triple damages for willful infringement," Daniel Egger, chairman and founder of OSRM (Open Source Risk Management), said a few weeks back.

How did we ever end up in such a mess? Well, Im no lawyer, but Glenn Peterson, who is an IP attorney and shareholder in the Sacramento-based law firm McDonough Holland & Allen PC, said, "Many traditionalists harken back to Thomas Jefferson to remind us that ideas are not patentable. One may patent the tangible fruits of an idea, but not the abstraction, i.e., the idea itself."

That gets tricky when it comes to software, but the U.S. Patent and Trademark Office has clearly gone too far in enabling companies to patent software—and for that matter, business ideas.

Next Page: What you can do to stop the patent madness.

Stopping Patent Madness

The Public Patent Foundation front page says it all: "Wrongly issued patents and unsound patent policy harm the public: by making things more expensive, if not impossible to afford; by preventing scientists from advancing technology; by unfairly prejudicing small businesses; and by restraining civil liberties and individual freedoms."

Sounds too grand? Think again. The big patent cases ask for tens of millions to more than a billion dollars in damages. Who ends up paying the bills? The people who buy and use software.

Even when companies win, we—the users and developers—end up paying the bills because top-level patent law is expensive and takes years. Eolas is still fighting Microsoft over basic browser technology found in IE.

Think that doesnt matter to open-source developers? Think again. If upheld, the Eolas patent also can be used against Mozilla or Firefox. No one is safe from patent abuse.

Read more here about the Eolas browser case.

Heck, even when companies dont fight, we, as IT buyers, end up spending more because our software providers send the additional cost to us.

The only winners in the patent war are the firms that use them against other companies and the lawyers they employ.

So, what can you do? Well, if youre in a position of authority, you can discourage your company from taking out stupid patents.

For example, am I the only one who finds it ironic that Sun president Jonathan Schwartz talked in his blog last Thursday about how he supports software patents and then, on the very next day, Kodak socked it to him?

Its not just Sun, though. Microsoft has won—and lost—hundreds of millions of dollars in patent lawsuits.

Isnt it time to stop the patent madness?

I think so. You can help by supporting the Public Patent Foundation. You also can write to your representatives in Congress and encourage them to reform patent law in general and, in specific, to take software IP (intellectual property) issues out of patents and into copyright, where it belongs. Senior Editor Steven J. Vaughan-Nichols has been using and writing about operating systems since the late 80s and thinks he may just have learned something about them along the way.

Check out eWEEK.coms Linux & Open Source Center at for the latest open-source news, reviews and analysis.

Be sure to add our Linux news feed to your RSS newsreader or My Yahoo page

Rocket Fuel