The Buzz Surrounding Software Patents

I want to revisit patents briefly. My inbox is turning into a who’s who of industry groups calling for software patent reform. Congress is holding hearings. (In fact, if you read this post within a few hours of its going up you can watch the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property’s live webcast. It’s like C-SPAN, only on your computer!) There’s even some draft legislation on the issue, whose purpose, Computerworld said, is to “save Microsoft a half-billion dollars.” To be fair, the article also said:

Under the draft legislation (which, remember, is a long way from being law), it will be harder to prove that a software invention deserves a patent and easier to challenge the patent once it’s issued. Damages will be limited. It will be harder to get an injunction that stops an accused infringer from selling its products. And all patent applications will be published once they’ve been in the pipeline for 18 months.

Those all sound like good things. I just can’t help but feel that any bill being pushed so hard by large technology companies can’t be good for CIOs—at the very least there has to be a catch somewhere.

The first time I blogged about patents I said the following:

While patents, and specifically patent disputes, have had a large impact on the software market, they have not had much of an impact on CIOs yet. This will change over the next few years as software companies look to retain current revenue streams and create new ones. Software patents give software companies leverage over their customers, and while this leverage has not been applied to date, it may in the future.

Of course, I promptly said that I hadn’t seen enough evidence to really believe this. I still haven’t. But I can at least think of some scenarios where this might happen. As I mentioned a couple of weeks ago, IBM is allowing free use of some of its patents that cover communications between computers. I haven’t reviewed the individual patents that they will make available, but let’s just arbitrarily assign a name to them, say, “Web services.”

Now, while IBM is allowing developers to use “Web services” for free, they still hold the rights to the technology. What is preventing IBM from deciding that “Web services” aren’t free anymore, or insisting that everyone who uses “Web services” has to use it with a particular product? What if another company that holds similar patents, let’s call it “Microsoft”, decides that you can use its patented technology for free provided you aren’t running it on Linux? I’m not saying that these things are going to happen, but the theoretical possibility exists.

So I’m curious, is there a buyer beware lesson here? How should CIOs and developers approach patented-but-free technology? Does anyone have any experience with this, on any side of the issue? Finally, I’ve made a few assumptions in this post. If some of them are off, please correct them in the comments.