More Thoughts About Software Patents

There have been many good points made in the comments section of last week’s “Thinking about Software Patents” post. I thought I would present some of the arguments here and see if I can stimulate even more discussion. Here are a couple of statements that sum up the pro-patent camp:

>>Patents are enshrined in the Constitution. It lent the force of law to those inventors who came up with useful, demonstrably workable products. There is a wealth of literature, economic and otherwise, citing the stimulus this yields to provide society with more and more labor-saving devices. In marketingese, it’s a win-win situation.

>>Software developers pour their heart and souls into the software that they write. Companies pay them big dollars to create this software, and have a right to protect that creation as an asset. Without patents, how else would we protect that?

I think everyone agrees that inventors—and by extension their corporate sponsors—should be able to benefit from their inventions. And my guess is that even the anti-software patent crowd doesn’t think that software should be an exception. The problem seems to be that the process through which inventors and (more often) companies obtain software patents is broken. One reader explained why:

>>The patent office lacks the knowledge and skill to reject obvious, derivative and overly broad software patents. Most any use of software infringes existing patents. While copyright protection may be insufficient, the current patent situation is so far out of control that rather than protecting innovators it ensures only those with large IP portfolios can enter a market at all.

I’ll share two other comments that explain how this impacts or could impact companies:

>>I work for a software standards organization. We invest a considerable degree of effort in working to ensure that our standards are unencumbered by IPR and therefore royalty free. We have discovered that there are numerous patents related to our industry—and many of these may not be valid. The issue is that neither the patent applicants nor the United States Patent and Trademark Office (USPTO) have done adequate prior art research on many of the patents granted in our industry. This is a real issue. The result is that many organizations such as ours spend undue time and dollars doing the prior art research necessary to defend against an improperly researched patent.

>>In my former vocational life I was a configuration manager. While doing an Internet search on that title, I came across an approved patent for configuration management—it was, in fact, a description of the process I (and probably thousands of others) followed on a daily basis.

In today’s Wall Street Journal (paid subscription required) there is an article about a patent infringement lawsuit against eBay. A Virginia-based company called MercExchange registered several e-commerce patents a decade ago and has been using these patents to sue eBay and others. EBay argued that the patents were overly broad and it looks like the USPTO agrees:

EBay had asked the U.S. Patent and Trademark Office to review the patents. The office said in an initial notice posted on its website that it may revoke one patent owned by MercExchange, which relates to the online sale of consigned goods. The move could be the first step toward revoking a 1995 patent that is central to a $29.5 million jury award won two years ago by MercExchange. The award later was reduced to $25 million.

In a filing posted on its Web site, the patent office said it found the patent to be invalid because its claimed inventions either were obvious or had been anticipated by other patents.

The patent office made a similar ruling in January involving another MercExchange patent that relates to another aspect of online auctions. In both cases, the decisions by the patent office are preliminary, and any final rulings can be appealed inside the patent office as well as through the federal court system.

In a belated effort to keep this post relatively short, I will point out that no one has taken the bait from the earlier patent-post about software companies exerting leverage over their customers. Right now it seems that patent suits are confined to vendors. Has anyone had or know anyone who has had a patent holder come after you for a non-commercial software patent violation (i.e., the fear that the configuration manager who found his work process was patented had)?