Software patents make front page of New York Times | Opensource.com

Software patents make front page of New York Times

Posted 08 Oct 2012 by 

Rob Tiller (Red Hat)
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This morning the New York Times published a front-page story on software patents. My wife got to the paper before I did, and as I got coffee she told me the story would make me happy. She also said it was too long for a normal busy person to read in its entirety. It is long, but I am happy to see that the closest thing we have to a national newspaper of record is getting the word out about the dysfunction of the patent system.

The story by Charles Duhigg and Steve Lohr is titled "The Patent, Mighty as a Sword." It starts with the misfortune of Michael Phillips, an innovator in the area of voice recognition technology who was sued by a competitor for patent infringement. "The millions of dollars Mr. Phillips had set aside for research and development were redirected to lawyers and court fees." Although a jury eventually found the patent was not infringed, defending the lawsuit cost $3 million, and this drove Mr. Phillips out of business. He was planning to leave the voice recognition area for someplace with a "less treacherous patent terrain."

There's no way to know how many similar stories there are of software patents discouraging or preventing innovation. But the Times points to evidence that Mr. Phillips is not an isolated case, and that both individual innovators and technology companies are hamstrung by the patent system. It reports that the number of patent lawsuits has "almost tripled in the last two decades." The number of patent applications has risen by more than 50 percent in the last ten years. "As much as $20 billion was spent on patent litigation and patent purchases in the last two years—an amount equal to eight Mars rover missions." Apple and Google spent more last year on patent litigation and patent purchases than on research and development.

The Times story describes the impossible work of patent examiners, who are charged with approving or rejecting applications based on about two days of work. "The patent office routinely approves patents that describe vague algorithms or business methods, like a software system for calculating online prices, without patent examiners demanding specifics about how those calculations occur or how the software operates. As a result, some patents are so broad that they allow patent holders to claim sweeping ownership of seemingly unrelated products built by others. Often, companies are sued for violating patents they never knew existed or never dreamed might apply to their creations, at a cost shouldered by consumers in the form of higher prices and fewer choices."

That's bracingly pithy. There's more—on absurd patents, on the use of patents by large technology companies to stifle competitors, on disputes that discourage small entrepreneurs, and the paralysis in Congress that has so far prevented major reforms that would address these problems. It's worth reading and forwarding to friends.

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7 Comments

Trizt

Quite horrible story, I have to say I'm glad I don't live in US and at the same time I'm sad that EPO does grant software patents even if they don't have the mandate from the EU.

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JKosin

Sad to see that companies are willing to spend millions to sue and not develop better products.

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Manny

the same is happening to our food and other genetic mod's we soon will be sued for being who we are.
http://www.mfe.govt.nz/issues/organisms/regulation/intellectual-property...

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DavidSpalding
Open Minded

I'm actuallly the owner of a phone that has had a core feature/functionality removed this year (via over-the-air software update) due to an antagonistic suit by a competitor. Walking around with a device that no longer does something all my previous devices accomplished, as a result of one corporation's greed and practice of legal aggression, is infuriating to say the least.

Makes me want to go punch a wall. Trouble is, I can't decide which wall, because I like walls (in general, but not on my electronic devices).

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Ron Finnerty

This is a great summation of the, as mentioned in the article, very long NY times piece. And that didn't include the even longer very insightful comments to that article.
I shall attempt terseness here.
Patent system busted!
Patent examiners seem unqualified to render a decision on some requests.
Why isn't a system in place academia uses on professional publication pre-reviewing?
The patent application would be sent to minimum of 3 professionals in the field, chosen by blind lot - a computer program that matches the claims in the patent for areas affected with professionals in that field. This group reviews the patent and expresses an opinion. If 3/3 agree to patentability it goes forward otherwise is rejected. Requestor gets 2 years to revise and resubmit but is still subject to "first to file" and "existing prototype/working model" standards.
Patent infringement claims - loser pays legal fees of both.
Patent infringement filer - subjected to the payment to the alleged infringing party of the amount of damages in their claim if they are unsuccessful in proving infringement.
This will make more reasonable realistic damage claim amounts.
Someone will sharpen their pencil alot better before filing.
Lastly, jury of your peers has no place in a patent infringement case. The grocer and the engineer do not have the same basic understanding of a device. So i dunno it looks the same and it functionally is identical aren't even close to each other. A case with international business ramifications should be filled with professionals from the international community.
In the USA we call this "change of venue to remove local bias."
Apple V Samsung in California let alone Silicon valley area was rediculous. you couldn't find a more biased community unless you took apple staffers for the jury.

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JKosin

@Ron,

Since you brought it up, the lawsuit between Apple and Samsung has opened up the possibility that Apple can now sue all the other phone makers in the industry for making phones that look flat, have a touch screen display, and can fit in your pocket or purse.

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Ron Finnerty

yes, Apple could do that.
Unfortunately, the first response to that by whomever got sued would be to challenge the patent itself and cause the issue to be taken out of regular folkes hands and back into the hands of the patent examiners, this time being really scrutenized, who By-the-way refused to issue a patent the first 6 times apple submitted it. This would in turn fire off a series of requests to without payments by anyone that previously was found "guilty?" of infringing those same patents....and/or set aside judgements wherein the judgement was based on a group of patents where the soon to be "unpatentable" judgement from USPTO would come. this in turn takes us back to day one of the Apple v Samsung case. As samsung would rightly argue that the 1.jury foreman had undue influence on the outcome of the trial. 2. jury admitted deciding samsung infringement the first day of trail-bringing objectivity and lack of jury following the many pages of jury instructions they were given. 3. The possibility that the now "unpatentable" verdict by USPTO of a key component in the award and judgement renders the jury decision probably inappropriate and potentially needing tobe set aside.

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

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