My summary and analysis of this important patent case, and that of Josh Sarnoff is up on SCOTUS.
Patents 
Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Hance Haney, Tim Lee, Adam Thierer, and Mike Masnick of Techdirt.com. Topics include,
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One of my favorite Cato publications back when I was on staff there was Wayne Crews’ Ten Thousand Commandments. Published every year, the report documented the mountains of burdensome regulations that businesses had to comply with that year. He has since moved to the Competitive Enterprise Institute, where he has continued to produce the report. Here is the 2006 version:
The 2005 Federal Register, the daily depository of all proposed and final federal rules and regulations, contained 73,870 pages. This is a 2.4 percent decrease from 2004’s 75,675 pages, which had been an all-time record. In 2005, 3,943 final rules were issued by agencies. This is a 3.8 percent decline from 2004’s 4,101 rules. Whereas regulatory agencies issued 3,943 fi nal rules, Congress passed and the President signed into law a comparatively low 161 bills in 2005. In the 2005 Unifi ed Agenda of Federal Regulatory and Deregulatory Actions, which details rules recently completed as well as those anticipated within the upcoming 12 months, agencies reported on 4,062 regulations that were at various stages of implementation throughout the 50-plus federal departments, agencies, and commissions.
Crews is doing an important service by highlighting the severe burdens the regulatory state places on private industry. It occurs to me that a similar analysis would be illuminating for the patent system.
You know what this country needs more of? Patent trolls! This time the target is Microsoft, over its .net software. Jeremy Reimer at Ars is on the story:
The patent itself, like many software patents, uses vague language to describe “a system and method for generating computer applications in an arbitrary object framework.” The patent involves creating “objects” in a web-based application. These objects are managed throughout their life cycle in an object library and put together to create complex, interactive web applications. The whole mechanism separates design, function, and content so that each can be developed separately.
To anyone who has some knowledge of web-based software development, it sounds a lot like what Sun’s Java or Apple’s WebObjects were doing before .NET was even released. In fact, the patent even admits as such: “Prior art solutions have succeeded in partially separating some of these functions. Notably, content management databases and digital repositories provide a means of separating content from form and function.” It then defends the need for this separate patent with the incredibly vague assertion that “content management tools typically fail to address form/function issues.”
I’ve used a few content management tools in my time, and none of them have failed to separate content from function—that’s basically the entire point of content management systems. The patent goes on to claim that “changes in design or content do not require the intervention of a programmer.” Again, it’s difficult to see how this is different from any other existing solutions, many of which predate Vertical Computing’s efforts.
Over at Ars, I’ve got an analysis of the patents in the Vonage case:
The “invention” disclosed by the patent is the concept of applying these “advanced” routing concepts to DNS servers. One of the additional services envisioned by the patent is the ability to translate among domain names, telephone numbers, and IP addresses—clearly essential in any VoIP system that interfaces with the traditional phone system. The server described by the patent would also be able to “condition name-to-address processing on certain parameters relating to a request for translation, such as the time of the request, the party or terminal making the request, the status of one or more potential destination terminals, etc.”
What follows is a detailed description of the functionality provided by this DNS server, listing a variety of situations and how it would behave in each. But hardly any of the details would be interesting from a programmer’s perspective. No algorithms or data structures are described in any detail.
The Federal Circuit says Vonage can continue signing up new customer while it appeals its loss in the Verizon controversy.
As Luis pointed out last week, Vonage’s hand was doubtless strengthened by the Supreme Court’s recent eBay v. Merc Exchange decision:
Note that per the court’s recent decision in eBay, this may work in Vonage’s favor in defeating the proposed injunction in this case. If the option is ‘no injunction’ or ‘make Vonage implement a workaround’, then the court is supposed to favor making Vonage implement the work around. If the option is ‘no injunction’ or ‘completely screw Vonage’s several million users’, the court is supposed to at least take that into consideration when discussing the injunction (though it may not be decisive.)
You’ll be shocked to hear that yet another patent trolling company has sued a major technology company over a vague software patent. Ars has the scoop. In this case, the plaintiff is “IP Innovation, LLC,” the defendant is Apple, and the patent in queston is this one, covering “User interface with multiple workspaces for sharing display system objects.”
I’ve gotten too busy to do a full “software patent of the week” writeup every week, but this certainly looks like it would be a juicy one. It’s got all the elements that make software patents so pernicious: it’s extremely vague, making it impossible for other software companies to be sure whether their products infringe on it. It’s extremely broad, apparently covering a variety of general characteristics of windowing systems. As the Ars article indicates, there’s likely to be prior art. Finally, it’s extremely wordy, with 62 loquacious claims and dozens of pages describing this “technology” in excruciating detail.
I’ve ranted about all of those problems before, so let me just make a brief policy observation: would anyone seriously claim that granting legal monopolies on the general characteristics of windowing systems is either necessary or helpful to the progress of the software industry? Microsoft and Apple spent the late 1980s and early 1990s battling it out for dominance of desktop computing, introducing numerous important innovations in GUI design. It’s hard to imagine Apple saying “Gosh, I just thought of a great new feature to add to Mac OS System 7, but it will cost a million dollars to develop it and Microsoft will just copy it in Windows 95. So why bother?” Apple and Microsoft copied each other promiscuously (well, OK, Microsoft mostly copied Apple) and consumers benefitted from it. Apple certainly would have liked to prevent Microsoft from copying their innovations (and in fact, they tried very hard to do so) but they ultimately were not able to do so. Does anyone think that consumers would be better off today if the courts had prohibited Microsoft from imitating Apple’s UI innovations?
I’ve got a new article up at the American:
Technology companies have responded to the proliferation of bad patents by engaging in the patent equivalent of nuclear stockpiling. By obtaining dozens, hundreds, or even thousands of patents, a company can develop a credible deterrent against patent lawsuits: if someone sues it for patent infringement, it will be able to find a patent the other company has infringed and countersue. Vonage’s fundamental mistake was that it chose not to join this arms race. As a result, when Verizon sued, it was completely defenseless.
Software patents are particularly ripe for abuse because software is assembled from modular components. If the patent system allows those components to be patented, it becomes almost impossible to develop a software product without infringing numerous patents. Moreover, because of the complexity of software, it is often prohibitively expensive to even find all the patents a given software product might in principle be infringing. So even a software firm that wanted to find and license all of the patents relevant to its products is unlikely to be able to do so.
It’s not clear how any of this promotes “the progress of science” as required by the Constitution. Because of the high cost and uncertainty of the patent system, most software companies don’t even try to find patents they might be infringing. Instead, they sign cross-licensing deals with as many companies as possible, and they pray that the remaining companies won’t sue them before they’ve had time to develop a patent war-chest of their own. This is great for patent lawyers, but it’s not clear how anyone else benefits.
Readers of Techdirt may notice that I’m shamelessly cribbing from Mike Masnick, who apparently picked up the idea of nuclear stockpiling from MySQL CEO Marten Mickos back in 2004. It’s disappointing to find that their warnings are growing more accurate by the year.
In comments to my previous post on Verizon/Vonage case, Ben Klemens offers some insight into the reasons for the Federal Circuit’s permissive patent jurisprudence:
Fed Circuit judges take great pains to avoid policy arguments in their rulings. I think if you asked the judge why s/he allowed patents like these to stand (sorry, s/he’d lean heavily on how the patent has broken no rules, has correctly been put through the system, et cetera. To me, their interest is much more in maintaining and/or expanding the patent system then looking at the system’s effects on the non-patent world.
As for the part in the Constitution (Art. I, sec 8.8) that says that patents shall be granted to promote the progress of science and useful arts—which implies that a patent system that does not promote progress is unconstitutional—judges often take the attitude that that part of the Constitution is either unenforceable or just rhetorical fluff. It amazes me how much effort has gone into making sure that patent rulings in no way consider whether the patent, or any aspect of the patent system, is at all beneficial.
As for how anyone could seriously support the Federal Circuit’s patent rules, it seems the Supreme Court isn’t, and is slowly but surely reversing the CAFC’s expansions of patent law—often via arguments that rightly include a policy component.
We can certainly hope.
In this week’s podcast, James Gattuso asked about the possibility of a Vonage work-around for Verizon’s patents. The Indianapolis Star reports that talk of a workaround was just that:
Vonage has finally confirmed what many had feared: The embattled Internet phone company has no “workaround” in hand to sidestep Verizon’s patented Internet phone technology.
Moreover, Vonage isn’t sure that such a plan is even “feasible,” given the expansiveness of Verizon’s patents, which set out methods for passing calls between the Web and conventional phone networks. Vonage’s chilly assessment, contained in a filing submitted to a federal court Friday, marks the first time it has admitted that it doesn’t have a plan for getting around Verizon’s technology. Vonage couldn’t be reached for comment.
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