Patents

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’s patent received extensive publicity this week when a judge slapped a $25 million fine on Microsoft for “misconduct,” including treating the patent holder, z4 Technologies, as “a small and irrelevant company that was not worthy of Microsoft’s time and attention.” Which as far as I can tell, it was, aside from the fact that it happened to have a patent on the kind of copy protection Microsoft uses in Windows XP.

There are two closely related patents at issue. The older of the two is Patent #6,044,471, “Method and apparatus for securing software to reduce unauthorized use.” (Strangely enough, the other patent was filed in 2002 and issued in 2004. It’s hard to see how Windows XP, released in 2001, could infringe it.)

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The patent battle between Apple and Creative that I blogged about back in June has been settled. Apple agreed to pay Creative protection money to make them go away.

The dispute was doubtless good for the patent bar, but it’s hard to see how anyone else benefitted.

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I’ve been reading some of the literature on software patents. Here is a fascinating paper by Berkeley’s Robert Merges drawing an analogy among patenting in the railroad, software, and financial services industries. Here’s his description of the early railroad industry:

To begin, there was a great deal of similarity in the way innovation progressed in nineteenth century railroading and late twentieth century Wall Street. Innovation in both industries was “an inside job”: it was dominated by large, vertically integrated firms (Usselman, 2002). Nineteenth century railroads not only laid track and scheduled shipments. They also performed service on and made routine improvements to locomotives, switching technology, rails, and all other aspects of railroad technology. Moreover, innovations diffused rapidly to rivals, and this was an accepted part of the business. Far from preventing this flow of information, the chief technology players at the major railroads saw themselves as part of a larger, cross-firm enterprise. They shared a common culture that included an implicit norm regarding new techniques: I share with you, you share with me (Usselman, 2002: 65). There was pride in an innovation that others could use, perhaps even some increment to firm or individual reputation.

This sounds strikingly like the software industry of today. So does this:

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This week’s software patent comes courtesy of my friend Rob LeGrand, a grad student at Washington University who previously worked for IBM. As he recounts on his blog,

I and two other guys filed for four software patents while working for IBM in Austin about five years ago but I never got around to checking whether any of them had made it all the way through the process. Well, we checked, and two of the four are now patents! You can find them at the Patent and Trademark Office’s database; the patent numbers are 6,778,837 and 6,898,628. (Checking the patent application database shows that the other two filings never made it even that far; presumably, IBM’s lawyers didn’t think they were worth the expense. Anyway, IBM gave us inventors little bonuses for all four filings.)

I suppose they’ll look good on my r©sum©, and I guess I’m proud to have my name on something that was deemed important and original enough to be patented, but I’m also a little ashamed. I mean, what is a patent, really? It’s an artificial restriction on the commercial use of an idea. Not an actual piece of property, but an idea. I have no desire to restrict anyone from implementing our ideas. And while most patents cover a specific implementation of a new idea, complete with detailed diagrams of its inner workings, software patents usually just describe what the invention does, not how it does it. Read about our patents and you’ll find prose more conceptual than concrete, written in dense lawyer-speak designed to cover as many potential products as possible.

I think Rob’s take on patents is a little more radical than mine. I don’t have a problem with patenting an idea in principle, as long as it’s novel and non-obvious as required by patent law. But Rob seems to feel that software patents are particularly problematic, given that, as he says, they tend to describe what the patents do, rather than how they do it. (since the “how” is described by source code, which is already protected by copyright law).

As Rob says, his patent doesn’t appear to be an exception. Basically, the patent covers the concept of using one’s GPS location as an input for an authentication process. Although implementing such an idea could be somewhat challenging, the patent doesn’t go into a lot of detail about how such an implementation might work. And while using GPS as an authentication method is a clever idea, it seems likely that it would be a fairly obvious to someone who had an actual application for it, rather than simply writing about it in the abstract.

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I see that Jason Schultz at EFF was way ahead of me on blogging about software patents. Over the last two and a half years, he’s accumulated a list of 25 silly software and Internet patents. Lucky for me, he doesn’t appear to have patented the idea of blogging about software patents, leaving me free to shamelessly rip of his idea.

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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. Mike Masnick suggested that I analyze this patent this week. It was granted to a company called Cordance, which is suing Amazon, claiming that their one-click ordering system infringes on it. The patent claims methods for automatically synchronizing contact information between client and server computers.

I wouldn’t want to disappoint Mike, so here we go: this patent is enormous. No, seriously, if the Guinness Book for World Records had an entry for “world’s largest patent,” I bet this patent would be in the running. The thing weighs in at about 85,000 words, about the length of a short novel. But that’s not all! Numerous other works, including “Kris Jamsa and Ken Cope, Internet Programming (1995),” “Marshall T. Rose, The Internet Message: Closing the Book with Electronic Mail (1993),” “John December and Neil Randall, The World Wide Web Unleashed (1996),” and assorted RFCs are also “incorporated herein by reference.” When you include all that supplementary information, this patent probably rivals the Bible for wordiness.

The patent is big in other ways too:

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Steve R. points me to this fascinating New York Times article on Wall Street’s patent race:

For now, all the big firms seem to be playing nicely with one another. Many lawyers involved in patenting systems and products on Wall Street label the patents as defensive in nature. They say Wall Street banks are trying to patent products or software systems in an effort to protect themselves from claims or litigation brought by individuals or small companies whose primary business is holding patents–those known to their detractors as patent trolls.

But some warn it is merely a matter of time before the patent activity turns from defensive to offensive. Wall Street firms will eventually look for ways to license the technologies or products they have patented, hoping to earn a high-margin revenue stream, or they will begin to litigate against each other, lawyers say.

“Right now, people are figuring out they need some playing cards so that if someone comes to us and says ‘You’re infringing,’ well, we have some patents and we can do a cross-licensing deal and everyone goes away,” says Raymond Millien, a former patent lawyer for American Express who is now the general counsel with Ocean Tomo, a merchant bank specializing in intellectual property. “But there are going to be some companies on the Street who are going to start licensing their products and enforcing the patents to get a revenue stream from them.”

It’s hard to avoid the conclusion that the patent system has gone badly awry. The standard theory of patents is that inventors get patents to allow them to share information about their inventions with other companies. But it doesn’t sound like anything of the sort is happening here. A few companies are getting patents so they can extract royalties from other companies for “inventions” they discovered independently. And the rest of the industry is getting patents in self-defense, so that they’ll have some ammunition to defend themselves when the more aggressive firms come knocking.

There’s a weird disconnect between academic discussion of patents and what’s going on in the real world. At least in the realm of software and business method patents, companies have long since dropped any pretext that their “inventions” are genuinely novel discoveries. This is very different from the academic conception of patents, in which inventions are always assumed to be clearly defined and non-obvious. Software and busines method patents might promote innovation on academics’ blackboards, but in the real world, it’s hard to see them as anything but a burden.

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