Tech Patent Process Needs Overhaul

When the business process patent burst upon the scene in the late 1990s with Amazon.coms infamous one-click-shopping patent, many wondered how the U.S. Patent and Trademark Office would go.

Were beginning to find out. IBM recently won a patent on a process for paying software developers. The patent (U.S. Patent No. 6,658,642) outlines a way to employ and pay—or not pay—programmers working on a project. The “not pay” is key, as the patent describes how to take advantage of open-source software in a development program. Most of the procedures described in the patent sound a lot like normal open-source development processes.

Also making patent news recently was Microsoft, which applied for patents in Europe and New Zealand that would cover access to the XML format used by Word 2003. When these applications came to light, the XML community protested. Microsoft had been generating much good will in that quarter for its increased support for open XML standards. The applications, however, brought forth the notorious Microsoft practice of “embrace and extend,” so deftly used with Java.

There is cause for alarm. In “Microsoft Watch,” an article by Mary Jo Foley quoted Microsoft spokesman Mark Martin defending the patent applications and their effect on Microsofts support of open XML standards. Martin said, “While the XML standard itself is royalty-free, nothing precludes a company from seeking patent protection for a specific software implementation that incorporates elements of XML.”

The World Wide Web Consortiums XML standard bars anything that prevents interoperability of XML-formatted code. The W3Cs XML Activity statement says that XML “enables long-term reuse of data, with no lock-in to proprietary tools or undocumented formats.” However, if Microsoft were to be granted a patent, the company could then demand royalty payments from any software developer wishing to create code that would interoperate with, say, a Word format implementing Microsofts flavor of XML.

Customers and partners of IBM and Microsoft should let them know they are unhappy with the approach to patents.

The patent office, and its tendency to rubber-stamp technology applications with only cursory review, must shoulder much of the blame. Microsoft and IBM are playing by the rules. Just as an American League baseball manager wouldnt choose to let his pitchers hit instead of using a designated hitter, these vendors must go for patents they think rivals might want.

The proliferation of software and business process patents has provided no incentive to innovation, inhibited innovation in e-commerce and probably stopped innovation in many cases that the public doesnt know about. The patent office exists to foster innovation. Its time for a new approach.

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