Software Patents Gone Bad

Opinion: Software patents are bad for both open- and closed-source developers, not to mention for anyone who buys software. Isn't it time we get rid of them once and for all?

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.