Patents

Over at the ACT blog, Mark Blafkin pinpoints what makes the iPhone really great: 200 patents!

The Apple iPhone is the result of tens of millions of dollars in research and development by some of the smartest minds in computing. The investment necessary to develop a radically new interface like Multi-touch requires that Apple have a way to protect that investment. If Nokia, Sony, and Motorola could all simply copy it in their new phones, why would Apple even bother? Besides, I’m sure Apple has had enough of playing R&D Lab for the rest of the industry.

That’s why Mr. Jobs declared, “Boy, have we patented it!” There are a lot of bad software patents out there, but devices like the iPhone make us all realize why we can’t throw the baby out with the bathwater. There are some things so cool, so innovative, they deserve patent protection.

I have yet to see a list of the patents Apple requested, and Blafkin doesn’t provide such a list, so it’s hard to judge how much of them are baby and how much are bathwater. But Blafkin’s supposedly rhetorical questions aren’t actually that hard to answer. Why would Apple bother to develop something like Multitouch without the benefit of patent protection? Quite obviously, it’s because if the product is as good as Uncle Steve’s presentation made it look, Apple is going to make a ton of money on it. And they would be able to make a ton of money even if they hadn’t applied for a single patent.

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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, Mike at Techdirt has done my job for me:

There’s been quite a trend lately of companies who had otherwise completely failed in the marketplace to suddenly reinvent themselves as “patent licensing firms” and then go and sue everyone who actually was able to successfully innovate in the market. The latest entrant is Intertainer, a company that was fairly well known for a few bubble years, but was unable to find a real market for their online video distribution system. They blamed the movie industry for colluding against them (a lawsuit on that issue never went very far, nor did the antitrust investigation it helped trigger), but are taking it out on the tech industry. The company, which has long since been out of business, is back from the dead suing Google, Apple and Napster, claiming they all violate a patent the company holds on digital downloads. Go ahead and read through the patent and help us all understand what is new or non-obvious in the patent. The patent was filed (provisionally) in March of 2001, by which point it’s hard to believe that the idea of distributing content electronically wasn’t well known. I worked for a company in 1998 and 1999 that did many of the things described in the patent, and we were far from cutting edge at the time. The best comment in the article, though, goes to Eric Goldman, an expert in high tech law, who notes: “I have the same problem with this patent as so many of the patents of the dot-com boom days: I don’t know what it means.” Intertainer missed the market. It happens. It’s a part of business. It would be nice if they could now leave those who succeeded alone to continue innovating, rather than wasting everyone’s time and money on a pointless lawsuit over a silly patent.

What he said.

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Related to my previous post, I think it’s no coincidence that the Samba team has taken the lead in criticizing the Microsoft-Novell deal. Some commentators have argued that the free software movement objects to the deal because they want to prevent interoperability between free and proprietary software, thereby forcing vendors to choose sides. But that clearly can’t be right, because Samba’s raison d’être is (as their slogan says) “opening Windows to a wider world.” If the free software movement were trying to prevent compatibility with proprietary software, you would expect the Samba team to be on the other side, urging restraint and cooperation with Microsoft. That clearly hasn’t happened.

I suspect that what is happening is that the Samba guys are terrified that Microsoft will use patent law to put them out of business. They’re particularly vulnerable to patent claims because their software is designed to interoperate with Windows, which of necessity means that they have to mimic many features of Microsoft’s own software in order to achieve compatibility.

Naturally, Microsoft has never liked the fact that people could interoperate with Windows without paying Microsoft for the privilege. The Samba guys know this. So they expect they’d be among the first targets should Microsoft make a concerted effort to use the patent system against the free software movement.

Update: My software patent series will be taking the week off in observance of the holidays.

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Another bit of fallout from Novell’s patent agreement with Microsoft, as Samba developer Jeremy Allison quits Novell. He was quickly snapped up by Google. I’ve never heard of the guy, but Ars calls him “prominent,” and Groklaw calls him “legendary.” His letter said, in part:

As many of you will guess, this is due to the Microsoft/Novell patent agreement, which I believe is a mistake and will be damaging to Novell’s success in the future. But my main issue with this deal is I believe that even if it does not violate the letter of the licence it violates the intent of the GPL licence the Samba code is released under, which is to treat all recipients of the code equally…

The Microsoft patent agreement has put us outside the community, and there is no positive aspect to that fact, and no way to make it so. Until the patent provision is revoked, we are pariahs.

Given that the ability to recruit and retain talent is crucial to the success of software firms, this sort of defection is likely to prove an effective way to enforce the GPL without the need to resort to the courts. Indeed, it’s a more powerful mechanism than the courts, because efforts like Novell’s to squeak by on a technicality aren’t going to fly. Being perceived as violating the spirit of the GPL is just as damaging as violating the letter of it.

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In a comment on Wednesday’s post on software patents, Patrick Mullen offers the following argument:

I think patents actually make it harder for companies like Microsoft and Apple. You can be the best programmer in the world and write the best program ever, but if a company with the resources of Microsoft has the ability to copy your program, who do you think will have the market share? Do you think you would stand a chance against their marketing machine?

I would find this argument more persuasive if there weren’t so many counterexamples. Let’s start with Google. They entered what everyone thought was a mature industry in 1998 and created a $150 billion company in under a decade. Yahoo and Microsoft did their best to copy the technology, but they were unable to stop Google’s momentum.

Or take YouTube. Google–by 2005 a large company with deep pockets–actually beat YouTube to market with a flash-based video site. Yet YouTube surged past them, and after 18 months they had beaten the company so soundly that Google was forced to shell out $1.5 billion to buy them.

There are plenty of other examples: MySpace, FaceBook, Flickr, Hotmail, Digg, and probably hundreds of smaller firms I’m not thinking of. Most of these had big companies try to replicate their success. And in most cases, those efforts failed miserably; the competing products weren’t as good, or couldn’t generate the buzz of the original. As far as I know, software patents were not an important component of any of these startups’ business models.

Now, of course some small companies have been crushed by larger rivals. Netscape is the obvious example. Kiko is arguably another. But it’s not clear to me why we should consider that a problem. One of Netscape’s big problems was that Netscape version 4 sucked, and then they took 3 years to release an even more sucky version 6.

As Mike Masnick emphasizes over and over again, it’s a good thing that companies have to keep innovating if they want to succeed. Giving a company a patent that guarantees it a lock on a particular market simply reduces their incentive to keep improving the product. That doesn’t seem like good policy to me.

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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’ll consider this patent, “Computer controlled video system allowing playback during recording,” which a company called Forgent apparently believes entitles it to royalties from the PVR industry. Here is the abstract:

A teleconferencing system with capability to store incoming multiple medium messages for later retrieval and playback is disclosed. The system includes a communications multiplexer which, in normal mode, receives the incoming message and routes the message to various output functions, including video, audio, and computer display. In store mode, the communications multiplexer receives the incoming message and communicates it to disk storage, for example by way of direct memory access. During playback, the communications multiplexer receives data from the disk storage, and controls its communication to the various output functions, in the same manner as during receipt of a normal incoming message during an interactive teleconference. As a result, multiple medium messages may be stored for later retrieval, with the playback appearing in the same manner as a conventional teleconference message.

This patent covers a device that’s capable of recieving, storing, and displaying various types of data. Unless I’m missing something, such a device is generally known as a “computer,” and I’m pretty sure that computers capable of manipulating audio and video content were invented well before 2001.

Moreover, almost all of the features described in this patent are core components of any modern operating system. Modern operating systems are adept at accepting data from a variety of different sources and routing them, as appropriate, to storage or to output devices. Using a technique called “multitasking,” they can store one file to disk while simultaneously streaming another file to an output device.

Once a general-purpose technology (like data storage and retrieval) has been invented, straightforward applications of that technology (like video storage and retrieval) are clearly obvious. I mean, once somebody has invented the hammer, we wouldn’t grant a patent on using that hammer to pound a particular kind of nail, would we?

Update: Incidentally, Forgent appears to be something of a patent troll. They’re the same company that claimed back in 2002 that they owned a patent covering the JPEG format. Forgent settled in one such case back in November.

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We are here at the Internet, where we’ve secretly replaced the US patent database they usually serve with Google. Let’s see if anyone can tell the difference!

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I’ve found that defenders of software patents tend to focus their energies on debunking common arguments against software patents. They never seem to get around to explaining why software patents are a good idea to start with. Solveig’s Singleton’s paper fits with this trend. Here’s the closest she comes to describing the benefits of software patents:

Early on, software was often parceled out along with hardware; trade secret offered protection; the cost was, due to lack of disclosure, some clever ideas have een lost. Then it became generally accepted that software would be protected by opyright. This works well against some types of copying (for example, counterfeiting) and for some types of programs (for example, games). But patents were seen as providing more certain protection against the copying of the function of a program more broadly (“look and feel” cases that sought to broaden copyright protection being problematic). The term of protection for copyright is unnecessarily long for software. In theory, patent law would extend protection only to the non-obvious and novel. That together with software’s technical nature seemed a good fit with patent law.

It’s certainly true that patents provide “more certain protection against the copying of the function of a program more broadly.” But it’s far from obvious that “protection against copying” is always desirable. Outside the patent context, such copying is often known as “competition,” and public policy generally aims to enhance it. I’m glad that Microsoft copied Apple’s operating system, Netscape’s browser, and Google’s search engine. It’s been good for me as a consumer. It’s not obvious to me what purpose is served by making it harder for companies to copy the broad features of each others’ products.

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My co-blogger Solveig Singleton has an interesting paper on software patents over at PFF. I found her arguments against abolishing software patents unpersuasive (more on that later, perhaps) but I thought her proposed solutions were eminently sensible. As she argued in her excellent amicus brief, she suggests that the bar for non-obviousness be raised to weed out trivial patents. I also think this is a great idea:

Another set of effective solutions would make the institutions responsible for the incremental development of patent law, the Patent and Trademark Office and the courts, more effective. The best way to do this is indirectly, by introducing an element of competition. More than one federal circuit should become involved in hearing appeals of patent cases; leaving the Federal Circuit alone to do the job means that difficult legal questions do not have the benefit of a contest of equals.

It seems to me that the problems with our patent system are at least partly a tale of regulatory capture. Congress created a special court in the early 1980s to deal with patent law. Understandably, presidents started appointing former patent lawyers to serve on the court. And, not surprisingly, those judges who used to be patent lawyers have taken an increasingly expansive view of where the patent system ought to apply.

Reshuffling the appeals courts so that the various federal circuits once again shared jurisdiction over patent appeals would restore some impartiality to a court that appears to have acted largely as a creature of the patent bar.

Of course, I also think that the courts should refuse to allow patenting of software. But these reforms would solve problems that extend beyond software patents, so these are good ideas whether or not you think software patents should be abolished. The paper is short, sweet, and to the point, so I encourage you to check it out.

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