Again, discussions are becoming common regarding patents, especially their applicability in the world of software. Again, we are confronted with evidence that even the best ideas can be subverted into something that would be nearly unrecognizable to it’s creators. Further, that ideas which were designed to protect can now become offensive weapons that do equal damage to all sides, not to mention the damage done to the core concept behind it all.
This week, Wired published an article titled A Patent Lie: How Yahoo Weaponized My Work that tells a real-life story: small company is acquired by large company, and the developers acquired in the transaction are asked to apply for patents covering aspects of their past work. In itself, this is about as exciting as sitting in traffic.
However, what was originally explained as a defensive process has now become offensive (in every possible way): large company is now pressing at least one patent infringement case, using it’s collateral in a way they never indicated they would. Today, the patents Andy Baio received are not part of a suit, but he knows that could change, and he’s not happy about it. Now that he sees how his patents might be used, he is coming forward, as a means to:
Nothing earth shattering, really. However, start reading the comments, and the picture that emerges starts to take on more facets, and complicating factors you may not have thought of begin to materialize.
If you have not read a patent application cited in some recent case, I suggest you do, as you will be amazed at what the Patent Office considers patent-worthy. Don’t just look at the overview, try to get into the details, looking closely at the work being performed and the language the application uses to describe it. As a former commercial software developer, I know I have written code that performs function that some of these patents claim to cover, and I’d be shocked if no one else felt the same way.
(For the record, my language of choice then was IBM Assembler. Parsing strings in a low-level language was neither easy nor fun, but it was necessary, as it still is today. Think about that for a minute. I have written code that functions substantially the same as code which was granted a patent does, but years ago, and for a commonly-used capability.)
One patent application I saw concerned sensitivity to the content of the data, specifically so that if it could determine that the data contained a phone number, it could associate an action to dial the phone if the user clicked on the number. The BlackBerry 7230 I carried in 2004 provided that function, merely by embedding a number inside a text note or an email. The 7230 predated the patent application by a couple of years, and I doubt BlackBerry was even the first. In fact, the patent application language was so general, they could have been describing a standard HTML hyper-link. (Watch out: that could be next!)
Is this what we are assigning patents for? Is this what we are fighting about? I would guess that some of these patents may well be fairly granted, but so far, none of those I have examined seemed fair to me.
It was always said that you could not patent an idea, but in my mind, that is exactly what we have allowed.
Having said all that, let me say categorically that I am not in favor of scrapping the patent system. Instead, let’s take this to a higher level. Frequently, the solution to a problem does not mean you must discard the current process. What must be done instead is to simply enforce the process that already exists.
The cause of the current mess isn’t really the patent system, it is how the patent system is used (and abused) by us. What we need is an intelligent, politically neutral (if such an animal exists), and realistic review of patent applications, with the goal of preventing patents being granted for functions like the one I described above.
Many will claim we already have that. To be blunt, they are so full of something unpleasant and malodorous that their eyes are brown. This is the same army of experts who took months in United States v. Microsoft to reach the conclusion that Microsoft merely needed to remove the icon for Internet Explorer, and not remove the code. (Why do “experts” seek to obfuscate the issues rather than pare away the clutter and reveal the meaningful underlying facts? Europe does a much better job of that than the USA does; look at their accounting standards for an excellent example.)
Knowing where to draw the line between a patentable entity and an idea is not easy, nor is the line likely to stay neatly put after someone draws it, but we have to find a way to better balance the rights of the intellectual property creators versus the right of other creators to leverage what is frequently nothing more than a different or better idea.
The only alternative to that would be to expect the users of the patent application system to be self-policing, and confine themselves to reasonable behavior, but we already know the result that produces, because we are looking at it, and even those who like it find fault with it.
One last warning: what is software today will become firmware tomorrow. So get it right, before you can’t fix it at all.
What will happen when patented software components are embedded in other systems, and can no longer be separated? Logically, this is the equivalent of having Windows embedded in a chip, so that your new laptop simply boots into Windows, and you don’t even have the option of doing something like installing Linux. The average consumer won’t care about this, and once commodity economics kick in, the devices the market produces will eventually mirror the needs of the low-end consumer, and those who want more will be left with “not much” in the way of options.
You think this cannot happen? Look at the smartphone industry, which represents tomorrows ubiquitous computing platforms (and they know it). We’re aware these phones run software called iOS and Android, and we get to hear all the time about these platforms and their capabilities. However, of all those capabilities, how much of that do we really have control over? Can you remove the crapware you phone vendor installed that you don’t want? Do you enjoy paying for multi-megabyte downloads to update applications you don’t want and will never use? Unless you know what “jail-breaking” or “rooting” means, you have only the control granted you by the vendor you bought the phone from. If you do know those terms, then you also know the risk you run every time you begin the process: coming out of it with nothing more than an expensive doorstop.
If you can’t change what they sent you, the difference between software and firmware is indistinguishable.
Forgive me for wandering a bit here, but the technology ecology is just that: interconnected entities which can be discussed as discrete issues, but at some point are really all tied to each other.