Software Patent of the Week: Hardware vs. Software

by on September 28, 2006

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week we return to the VoIP industry, which is rapidly becoming choked with patent litigation. One of the leading VoIP firms, Vonage, was sued by at least two companies this summer for patent infringement. Verizon was one of them, but I’ve yet to find any information about which patents they allege Vonage infringed. If anyone knows, please tell me and I’ll look at those in a future installment. The other company to sue Vonage was Klausner Technologies, which previously won a settlement from AOL.

The patent at issue is seems to be “Telephone answering device linking displayed data with recorded audio message.”

This patent is interesting because it doesn’t appear to be a software patent, as such. The patent describes a physical device–a fancy answering machine with a touchscreen display that lets you look up the photograph and other information of people who call you. It’s got drawings of what the machine looks like, and it’s got fairly detailed descriptions of the electronics inside:

The microcontroller 1 is preferably a 68HC11, manufactured by Motorola Semiconductor. The microcontroller internally is comprised of memory 2 containing RAM memory and EPROM memory circuits that are known to those skilled in the art. The RAM memory functions as read/write memory used for storing data and temporary system status events of the microcontroller. In the present invention, the RAM memory of the microcontroller 1 is also used for the storage of telephone numbers, names, user identification codes, other information about callers, and voice messages.

Here’s the weird thing: AOL and Vonage have VoIP systems that don’t look anything like this. Their VoIP applications are largely driven by PCs, rather than stand-alone devices. And it’s a safe bet that the operation of Vonage’s stand-alone devices is different from that described in the patent.

I confess I find the issue of patent scope baffling. Interpreted narrowly to encompass only the specific device described, Klausner’s patent would be completely irrelevant, as most of the details of modern VoIP applications are fundamentally different from those described in the patent. Given that AOL settled the case, then, I have to assume that the patent was interpreted broadly to encompass any electronic system with the same features.

But if that’s true, then what this “invention” entails is the ability to store information in a database, sort it according to multiple criteria, and retrieve it on demand. This is obviously not new or original functionality. Database software has provided this functionality for decades. It would have been quite obvious even in 1994 when the patent was filed. Of course, implementing the features the patent describes in software would be a fair amount of work, but it’s not work that’s in any way described by this patent.

I think it’s at least possible that the hardware device described in the patent is non-obvious enough to merit a patent. But if so, the patent should be limited to the specific hardware device described. A software system shouldn’t be considered infringing simply because it provides the same functionality. The implementation may or may not be obvious, but the bare feature set clearly is. A program that implements the same functionality using a different implementation shouldn’t be considered infringing.

I haven’t talked much about what I think should be done about software patents, because honestly I haven’t learned enough about the system to have a definite opinion. But here’s one proposal that I think has some merit: there should perhaps be a legal rule that software, in and of itself, can never be infringing. This would leave the software industry free of the patent system’s innovation-chilling effects without disrupting other industries that may benefit from the patent system.

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