Tuesday, September 25, 2007

Who is Winning with Software Patents?

When I worked at Novell, they heavily encouraged us to submit anything and everything for patent review. By submitting an idea -- no matter how crazy it was -- you would receive a free t-shirt. If the idea proved worthy of further patent-exploration, you'd get something else, and if the patent was approved you'd get $1000.

I remember talking to a co-worker about something I wanted to do to our internal Wiki to improve our collaboration, and he said "you should submit this for a patent". That was such a foreign thought to me, but that's the prevailing mentality.

While I was working at Novell ZenWorks, they patented a feature of the new ZenWorks web-based user interface. When the user clicked on something, a little dialog box would pop up, and the rest of the browser screen would fade into a darker shade of gray. Nothing that I had not seen before, but I remember the celebration when they were awarded a patent for some trivial CSS and Javascript. I've seen people unknowingly infringing on Novell's patent in several places.

A company recently sued a slew of other companies (Microsoft, Verizon, AT&T, Sprint, Dell, Lenovo, Toshiba, Viacom, Real, Napster, Samsung, LG, Motorola, Nokia, Sandisk Hewlett-Packard, Acer, Gateway, and Yahoo) for an amazingly original and innovative invention: the playlist. A file with different lines that a program reads and does something with each line. They could probably sue every software company in the U.S. for writing programs that use such "innovative" technology.

"Predictably, Premier appears to have no tangible company history other than patent infringement lawsuits and does not produce any sort of product that competes with any of the companies listed." says the ArsTechnica post. Predictable indeed. Every year 40,000 new software patents are awarded by the USPTO. A record in 2007.

Vonage will likely die from patent litigation. It just lost a $69.5 million case against Sprint, and its shares plummeted yet again. This is after a battle against Verizon that it also preliminarily lost. I'm not sure how much longer they can withstand such a beating. And I wonder why other prominent Voice-Over-IP companies have not been sued yet. Maybe they're busy settling with Verizon and Sprint after the public Vonage crucifixion.

The question I have is: who is really winning with software patents? Vonage certainly isn't. Estimates say it costs $20,000 to check a line of code against patent infringement, and 2 to 10 million to fight one.

An acquaintance, when he found out I was a programmer, eagerly approached me to distill the advantages of going with his firm for software patents. Numbers flew for how many patents they had "gotten through". He certainly is winning. The lawyers certainly are winning. I'm not sure anyone else is.

(No, I'm not against all patents)

[Update: Vonage lost the appeal against Verizon.]


  1. IMO, the purpose of patents is not to protect against those who unknowingly infringe, they are to protect against competitors which knowingly do so.

    For me, patents are a grey way to deal with ethical issues, and as engineers, it is natural for us to feel uncomfortable with the overall process.

    Thanks for the read.

  2. Randy, I don't know how patents help to deal with ethical issues. Usually when I think of "ethical issues" I think of "abortion", "euthanasia" and other suchs topics.

    The big question for me as an engineer -- and one which I tried to pose on this post -- is whether allowing trivial things to be patented is really protecting innovation. Who's the current software patent system really protecting or helping?


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