The American software patent system is broken. I am no lawyer but I am a software developer and the very fact that patent trolls exist proves that the system is in a bad state. Earlier this year House Judiciary Chairman Bob Goodlatte (R-Va.) started putting together a bill known as the “‘Innovation Act” which as Goodlatte describes it is a “way to address the issues that businesses of all sizes and industries face from patent troll-type behavior and aims to correct the current asymmetries surrounding abusive patent litigation.”
Patent trolls are companies that buy or license patents from others and then aggressively pursue licensing fees or file infringement lawsuits, as a means of business and not to protect innovation.
Money and greed are the driving forces behind these privateers that are nothing more than legal highway robbers. The problem is that now Goodlatte has created an amendment for his own bill that removes a provision which allowed those being sued to challenge the patents at the U.S. Patent and Trademark Office.
Money and greed are the driving forces behind these privateers.
So, Goodlatte puts together a bill against patent trolls, including software patent trolls, then has a few meetings, a few drinks after work and now suddenly he removes the software patent provision. Was he visited by the ghost of Apple WWDC to come? According to reports, Goodlatte had a change of heart due to “very concerted lobbying effort” from certain parts of the tech industry.
Goodlatte has been under pressure from the likes of Microsoft, IBM and Apple to remove the software patents provision. IBM’s Vice President of Governmental Programs Christopher Padilla recently wrote to Goodlatte and other members of the Judiciary Committee saying that while IBM “very much supports the efforts of Chairman Goodlatte” and desires to see the end to patent litigation abuse, the company would outright oppose the Innovation Act, if the software patent provision was not removed. It looks like they got their way! In a narrow-minded self-congratulatory rant Padilla wrote that the USA’s patent system is “the envy of the world, and its strong protection for software innovation is critical for sustaining software industry leadership.” Which of course is complete nonsense as the European Union has specific legislation that voids software patents and software innovation isn’t suffering there. Also there aren’t any software patent trolls in the EU either!
Entrepreneurs across the country are telling Congress that it is time for reform. Innovators are frequently roadkill for patent trolls armed with bad patents.
Jon Potter, President of the App Developers Alliance
The problem with software patents is that the applicant is trying to patent a method and not an actual device. Imagine if maths could be patented. Sorry children you can’t learn about calculus today that is a method that has been patented and we aren’t allowed to teach it unless we pay a license fee. The argument that algorithms are just forms of mathematics is fairly strong, but the USA doesn’t seem willing to listen. Interestingly in the USA applicants aren’t allowed to patent business methods, a way of doing business. This then begs the question why can a software method be patented but a business method can’t!
This doesn’t mean that innovators and inventors are left without any protection, there are other laws like copyright that protect their rights. In fact it was copyright law that was used by Apple to successfully sue Samsung over claims that it the latter copied the former’s ideas.
Android and App developers
Open source software and patents is a hot topic and a complex one. Unlike copyright or trademarks, software patents prevent software engineers from implementing a methodology. It doesn’t matter in what programming language or on what system, or even if the programmer has no knowledge of the patent or any system that implements it. The basis of modern computing was built on the concept of the free exchange of ideas. The very protocols that govern the Internet like TCP/IP or SMTP aren’t patented but yet the new ones, especially for things like video codecs or mobile communications are patented. This will ultimately cripple invention. The other problem is that many software patents are for very obvious ideas that just about any engineer would think of, not because they are clever or have special insights, but because is just the most obvious thing to do. But the people at the patent office aren’t engineers so for them to make a judgement call about what is obvious and what isn’t, is very hard.
One of the most obvious cases of a patent troll with a bad patent is Lodsys. A couple of years ago the company started suing app developers for patent infringement because their apps have links to other apps they have written! Since links to apps are everywhere on the Internet including one in your app isn’t a genius idea it is obvious. But yet somehow Lodsys are still able to sue small independent app developers trying to make a living and support their families. Goodlatte’s removal of the software patents provision means that he and his “sponsors” have given legitimacy (once again) to companies like Lodsys.
A couple of years ago the company started suing app developers for patent infringement because their apps have links to other apps!
However all is not lost, there are other US lawmakers who are keen to seeing the current patent laws changed including Sen. Chuck Schumer (D-NY) who is putting together a bill that includes provisions about software patents. But the machinery of government grinds slowly, so we shouldn’t expect any changes very soon!