The Scourge of Silly Software Patents

by Krishna on June 13, 2010

I was about to link to a story about a major software company suing another for software patent violations which included such brilliant ideas as “System and method for providing and displaying a web page having an embedded menu”. Then I realized that this is not news at all. Collecting software patents for simple concepts and using them as threats seems to be the rage in the industry now.

What I still find hard to believe is how patents are granted for such trivial code. If you are working on any application, you will frequently encounter challenges (minor or major) in user interface, databases, business logic, etc. and would have wrote code to solve them. The problem is that most of us don’t have the time or opportunity to document these problems and solutions and apply for software patents. If we had, you or I might be the owners of some of these patents. Big companies have the resources to keep filing claims all day long

Does the Patent Office have people with enough competence to evaluate these patent claims properly? What is the process, beyond fighting a long, costly, sometimes ultimately futile legal battle, to say that a patent is meaningless and should be revoked? Can there be an independent agency (or agencies) that can act as a prosecutor for the public interest to evaluate software claims before anyone can apply to the Patent Office? Not an agency with veto or authorization power, but an impartial critical evaluator who can call out obvious false claims. Maybe such an agency can have people drawn from different companies and non-profit organizations. This is actually the job of the Patent Office, but apparently they don’t seem to be capable of doing it.

It also seems to me that beyond a certain point of growth, your company is likely to be unfairly targeted by competitors and fortune-hunters. All legal, of course, but that doesn’t help if you don’t have a huge pile of cash lying around. The only options are to keep your growth under the radar of your large competitor, or hoard or collect capital to manage such legal challenges. The latter is not even a sure option as you may still lose your lawsuit and have to shut down your company.

Also strange is how large companies are themselves targeted by obscure patent trolls (remember the RIM case), but there is no significant effort by them (as far as I know) to lobby Congress to restrict such practices. In a sense, software patents are continuing to justify the term “weapons of mass destruction” because although everyone knows how dangerous it is for patents to be used against them, they still want to own them so that they can use them against someone else. Bringing sanity to the situation will need serious leadership from the top players in the software industry.

It doesn’t look very optimistic at this point.

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