Patently Absurd

Well the news of Kodak succeeding in patent litigation against Sun is
burning around the web. Between this one, the Eolas plugin patent, and the
simple fact that it is as much as impossible to do a patent search on
software with any level of thoroughness, the industry is heading for rough
seas in my opion (excuse the nautical references. The Perfect Storm is on
A-Channel right now).

The more of these idiotic perversions from the convergence of invention
and justice that I read, the more I come to believe that like so much of
the legal system, society and business has outgrown the intent, and now
the letter is argued without regard to application, effect or intent.

To give some context, the lawyers have learned that you broaden the
claims of the patent as much as possible to ensure the widest coverage,
and to strengthen the patent for litigation. The claims are detailed
enough to pass the patent office examination, and the system feeds on
itself. The interesting part is the patent office is so far beyond
ability to determine novel and non-obvious work, that it’s literally
become defeated by the system that gave rise to it.

It’s now fairly standard practice that programmers are told not to look
at all, and indeed to completely avoid getting any information or ideas
from pattents. This is actually be best defense at this point, in
addition to getting them to grind out patents themselves as a defense
mechanism.

It’s funny, but that whole “get a patent chest to CYA” was founded on
the idea that it would be a software company going after a software
company.

Kodak is not a software company. The house of cards is falling.

The root of the problem is that these industries (and here I’m not just
talking software) that are driving their areas of knowledge forward are
so large that the idea that a novel invention will only occur in one
place is almost ludicrous. There are too many people, too many companies
moving far too fast to make the idea of a patent office tenable. Or
needed.

Another contrast. Originally, patents covered ideas and protected the
inventors to recoup the costs of development. Plus provide some reward.
Those ideas were able to be leveraged directly to advance other
projects, and the royalty was worth the price to produce the product
that derived from it. The patents in question in these cases are barely
ideas. They aren’t techniques with implementation that novel or complex.
They aren’t worth it. A successful patent that had some value was RSA.
The licensing however was almost completely outrageous, at over $10,000
starting. It actually stifled the industry it could have caused to
flourish to much quicker. Security suffered in software under the 17
year moratorium that supported it. The online commerce software has
exploded since the expiration of the RSA patent. It could have done so
much earier with more open terms.

The point with RSA is that it was a specific, detailed implementation
that was of significant value to the products guild with it (web
browsers). It wasn’t a vague implementation philosophy that would be
arrived at by anyone experienced in software development.

Software innovation is at risk. Our judicial system is ill-equipped to
chart the course, and our politicians are funded by the companies
building up these vaults of patents. The law is not in the interest of
the public or the country or the economy at large. It is again in the
interest of a few that support the election of people that will support
those narrow interests.

Perfect Storm has a very sombre ending. Hopefully we can avoid that sort
of ending in the software patent saga. The weather charts don’t look
promising.

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