Keeping politicians' hands off the Net & everything else related to technology
It appears that Judge Spenser flinched from issuing a BlackBerry injunction. He continued to rattle his saber, but he stopped short of ordering the network shut down. And for good reason–you don’t piss off the majority of the nation’s lawyers and business execs without consequences.
Meanwhile, the patent office issued another rejection of an NTP patent. Things look pretty bleak for the nation’s leading patent troll.
The Electronic Frontier Foundation is challenging Clear Channel’s patent on a system that records an event and produces copies of the recording for distribution at its conclusion. This is, quite simply, an obvious concept. Recording a show is certainly not a new concept, and the idea of doing so quickly, while certainly a valuable enhancement, doesn’t strike me as an “invention” worthy of legal protection. This illustrates an important reason that software patents are almost always obvious: this patent is just a grab bag of distinct features thrown together with some software glue. Recording, real-time editing, and burning, individually, are not difficult or original concepts. Moreover, there are general principles of good software design that make combining these three features into one system straightforward for anyone “skilled in the art” of computer programming.
Research in Motion has released information about what they call a “workaround” for NTP’s patents:
Currently, when the [Network Operations Center] determines that a BlackBerry device is outside of a wireless coverage area, it queues the message and resends the message when the BlackBerry device becomes available, without interaction with the BlackBerry Enterprise Server (or BlackBerry Internet Service).
With the BlackBerry Multi-Mode Edition software update, the NOC no longer queues messages. If a BlackBerry devices is out-of-coverage, the NOC will inform the BlackBerry Enterprise Server (or BlackBerry Internet Service) that the messages cannot be delivered at that time. The BlackBerry Enterprise Server (or BlackBerry Internet Service) will be queue the messages until it is notified by the NOC that the BlackBerry device is available.
Does this “work around” NTP’s patents? I have no idea. Here’s what’s claimed by one of NTP’s patents:
Here are some of my thoughts on intellectual property in the classical liberal tradition, since we’ve started in on this. This is a series, and it isn’t done yet. Others have also posted in this series at the ipcentral blog (category “Liberty”); these are just links to some of my own basic entries. I haven’t gotten to Jim Harper’s “Malum Prohibitum, Malum in Se” argument yet, for example. Patience, Jim.
I. Introduction–Because You Asked, Libertarians and IP
II. Rights in Ideas
III. Enforcement Problems.
IV. Natural Law
V. Public Choice and Rent-Seeking
VI. Monopoly?
VII. Alternatives, and more alternatives, and more…
Background: I used to be an IP anarchist, a la Tom Palmer and Tom Bell. But then I spent a few years working at CEI at the time that Jim Delong was also there. I was party to and audience to many, many arguments about IP, mostly involving Jim, Fred Smith, and various others. And I was persuaded that there is something to this IP stuff after all, that it is more like physical property than I ever wanted it to be. I boosted it in my mind into the category of hard problems. I don’t think I had ever done this with a policy problem before, so I’m not worried that I have any alarming tendencies to do so. And there it remains to this day.
This proposal from IEEE for a “patent lite” regime to augment the current patent system strikes me as a very bad idea. It would lower the bar for patents by eliminating the obviousness requirements, thereby expediting the review process and allowing “limited patents” to be granted more quickly. And “limited patents” would have a term of only four years.
This proposal seems like it would take the worst features of our current patent system and make them even worse:
In fact, no examination–beyond a check to see that the minimum filing requirements are met–would be performed before issuing a registration number, which the patent owner would be required to use alongside the invention to gain protection. Because there would be no official determination of novelty, there would be no presumption of validity for the limited patent. Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent.
Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation. At the time of the filing of a lawsuit, the proceeding would be stayed pending the patent office’s examination. That exam would take less time than a regular patent examination, because obviousness would not be considered. In addition, the alleged violator of the protection would be able to provide prior art for the examiner to consider, evidence that would substantially reduce the cost and duration of litigation, particularly when there is evidence that protection should not be granted because the technology isn’t novel.
Because the goal is to prevent knockoffs, it would protect against these who were aware of technology in the market. Showing that the technology had been independently created before the patentee’s first commercial use would be an absolute defense. But it would be a personal defense; the patent would still be valid against others who cannot show substantial development of their products prior to the patented product’s introduction.
I think the idea of trying to “prevent knockoffs” really gets to the heart of what’s wrong with software patents in the first place. Google is a knockoff of Altavista. Windows is a knockoff of the Macintosh. Linux is a knockoff of Unix. Internet Explorer is a knockoff of Netscape. Excel is a knockoff of VisiCalc. Ordinarily, we call such knockoffs “competitors.” Yet in the bizarro world of software patents, when a company becomes “aware of technology in the market” and decides to build their own technology to do the same job, (even if it’s developed independently) that’s something the law ought to punish.
Patents are supposed to protect specific implementations of an idea, not the idea itself. “Knockoffs” are supposed to be permitted–even encouraged–as long as the knockoff isn’t implemented in the specific way described in the patent. But because of the nature of software, there isn’t any clear difference between an idea and its implementation. (And implementations are already protected by copyright, so it’s not clear why addition protection is needed at all). As a result, you wind up with broad concepts, such as one-click shopping or wireless email being granted patent protection. This proposal will only make that problem worse.
Hat tip to Mike.
Occasional co-blogger Solveig Singleton has done good work on patent reform, but I think her latest analysis of the RIM-NTP patent dispute rather misses the mark:
The patent office is likely to declare all of NTP’s patents invalid in its final ruling. While NTP could appeal, this would take quite a while, plenty of time for RIM to finish working out a technical bypass. NTP’s position is getting weaker and weaker.
She’s right that NTP is getting weaker, but the reason is that no matter what the letter of the law says, no judge insane enough to order the shutdown of all BlackBerries. And she’s wrong to imagine that RIM can or will work out a “technical bypass.” The “invention” that NTP has patented is the concept of checking your email wirelessly. (there are a few qualifications to the scope of the patent, but none of them are of much use to RIM) As long as BlackBerries do what they’re designed to do–fetch peoples’ email from a mobile device–they’re infringing NTP’s patent.
I’ve been a disappointed with media coverage of this issue: I think the fact that NTP has patented the idea of wireless email is crucial to a proper understanding of the case. But reporters credulously repeat RIM’s claims tha they have a software workaround to “bridge the patent,” when in fact, a BlackBerry that doesn’t infringe NTP’s patent (i.e. that doesn’t fetch email wirelessly) is called a paper weight.
Is Patrick Ross trying to make his own side look bad?
The conference heard a compelling perspective on software patents from Guenther Schmalz, director of IP for Europe for SAP, the largest European software maker and the third-largest software maker in the world. SAP burst on the scene in the early1970s, like Microsoft moving into areas of software that IBM had no interest in commoditizing. For years SAP grew and grew and had no patents. Now they’re ramping up a major patent office with a few dozen attorneys around the world. Why? “Times have changed,” Schmalz said. In the early days, SAP’s competitors were way behind, but now competitors are everywhere. Patents are the only way for SAP to ensure returns on its development investment, he said, adding that copyright is no solution, as the actual writing of code only makes up about 20% of the development of software.
“Those who drive innovation need patents,” he said. “Those who don’t imitate.”
To put this a little bit differently, in the past, SAP was an innovative company that was able to stay ahead of the competition by virtue of their superior technology. However, now that they’re a fat, lazy incumbent, they’re discovering the joys of using patent law as a club against their more innovative competitors.
The idea that creators have the right to recoup all of the value they create is a common idea in intellectual property debates. Larry Lessig quotes NYU law professor Rochelle Dreyfuss as dubbing this the “if value, then right” theory of intellectual property. It’s an idea that sounds intuitively plausible, but with a little bit of reflection, it becomes obvious how pernicious it is.
After all, capitalism is founded on the ideal of vigorous competition. When some entrepreneur invents a new product category of business model–say, the fast-food restaurant–he invariably attracts a swarm of competitors. Competition forces down the prices in this newly-created industry, preventing the innovator from capturing the full value of his or her invention. Ray Kroc’s invention of the fast food restaurant, for example, created a whole lot of value, and most of that value went to consumers, not to Kroc. He wasn’t able to use the law to exclude competitors and “ensure returns” on his innovation. To the contrary, under our economic system, he was required to continue innovating if he wanted to turn a profit.
It’s quite possible that Kroc felt resentful toward these upstart “imitators” who copied his business model without (he would claim) adding value themselves. But that’s the way the business world works. Competition is cutthroat, and businesses who stop innovating shrivel up and die. That’s as it should be, and consumers benefit tremendously from such creative destruction.
By the same token, SAP probably resents all these pesky little companies that are barging in on market opportunities that they pioneered. Tough. If they want to stay at the top of their industry, they need to continue innovating. They have no right to expect the government to “ensure returns” on their investments. That’s the way it goes in most other industries, and it’s the way the software industry ought to work as well.
James DeLong analogizes pharmaceutical and software patents:
The general principle is that if governments remove the incentives for invention and innovation, then (surprise!) it does not happen. This applies to software and other creative products as well as pharma.
This is a plausible point until you realize that software is already protected by copyright law. And for a variety of reasons I’ve argued before, software patents have a lot more flaws than software copyright. I have yet to see anyone explain why software patents are necessary, given that copyright law appears to give plenty of protection for precisely the same investments.
It’s good to see that the Patent Office has come to RIM’s rescue by hinting that it will be rejecting all of NTP’s patents in February. It seems that RIM’s gamble paid off. At this point, it would be an extremely boneheaded judge who would issue an injunction given that NTP now looks almost certain to lose on the merits. And that means that RIM has little reason to settle, and it’s looking increasingly likely that NTP won’t get a dime.
That’s heartening, but I hope this isn’t the end of the story. Policymakers ought to take this as an object lesson in the problems with the patent status quo. If NTP’s patents were invalid, then RIM shouldn’t have had to spend 4 years in court defending itself against charges of infringing them. Something’s busted and needs to be fixed.
News.com reports that after more than 25 years of battling with Sony Corp. and others in court, Andreas Pavel has finally won the right to say that he was the man who invented the Walkman.
What blew my mind away when I read this is that I can distinctly recall getting one of those very first Walkmen for an X-Mas gift back in the early 80s. What a hunk of junk it was. It only received FM radio, and didn’t even do a very good job of that. They got much better in subsequent years, of course, until they were finaly replaced by portable CD players and now iPods and MP3 players. But, amazingly, this entire time, this Andreas Pavel guy has been engaged in a patent dispute about a long-dead technology. Amazing. Hopefully the Blackberry dispute doesn’t take this long to settle!
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
