A curse on the patent bullies

There is an argument that, in their original conception, patents were for the general good. They encouraged companies to publish the details of developments they had made, while protecting their exclusive right to control the exploitation of the development for a period of time. This argument has some credibility when it is applied to the development of concreted techniques and technologies.

However, the majority of software patents amount to little more than an idea. Rather than taking months of painstaking effort to develop a single patentable technology, a handful could be dreamt up over lunch. They frequently fail the tests of both obviousness and prior art, but are granted anyway by the US Patents and Trademarks Office.

It is very likely that these patents would be overturned if ever tested in the courts The problem is that a smaller company faced by being sued by one of the giants, often cannot take the risk, so they settle as TomTom did with Microsoft last year. Larger companies tend not to face the same risk, as they are likely to have large piles of patents themeselves, and simply threaten to counter-sue. Thus, instead of being means to protect innovation, patents become weapons to fend off competition, or to defend against such attacks, as ex-Sun boss Jonathan Schwartz said recently

Apple is currently gunning for Google Android. They are not attacking Google directly, but instead suing HTC, the manufacturer of a number of Android-based phones. As many people have been saying, there is prior art in the case of most (if not all) of these patents. One of them, which was granted this year, is for a “device with a touch-sensitive display [which] may be unlocked via gestures performed on the touch-sensitive display.” The thing is, I’ve just been watching an early episode of Babylon 5, which shows a character activate a wall-mounted display by running his finger down the edge of the screen. Prior art if ever I saw it, and this “technology” was probably “invented” when a set designer said “I know what would look cool…”

There was hope that the US Supreme Court decision in the Bilski business-method patent case would blow a large hole in the concept of software patents as well. It has not proved to be so simple, and the decision in i4i’s case against Microsoft has brought them back into play.

There are many people who are feeling a sense of schadenfreude at the likes of Microsoft and Google being targeted in patent suits. It is true that there is a kind of poetic justice in it, but victories for the companies bringing these cases will be a bad thing. Software patents stifle innovation, and utimately will be most harmful to Free and Open Source software. Like any weapon, nothing guarantees that right will be on the side of the one who wields it most effectively.

So, a curse on all those who use software patents in this way. May all such cases ultimately end as did SCO’s case against IBM, with the ruin of the plaintiff.

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